MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          3 October 2002
	DOCKET NUMBER:   AR2002074526

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage.

APPLICANT STATES:  That shortly after they were married in August 1977 they went to Fort Benjamin Harrison, IN and the FSM made her the beneficiary of all his military benefits.  She was to receive his retired pay when he passed on.  When she first filed a claim for the annuity, she was told that she would have to wait until she was 62 years of age to submit it.  When she turned age 62 and again submitted a claim, she was told that there were no records showing the FSM had ever received retired pay.  She was also told that had he received retired pay, she should have gotten it at the time of his death in 1984 and, since she had not, there was no reason for them to check.  

EVIDENCE OF RECORD:  The FSM's military records show:

After having had prior service, he enlisted in the Regular Army on 9 June 1955.  He retired on 1 June 1966.  He married the applicant on 15 August 1977.  He died on 7 November 1984.

Records at the Defense Finance and Accounting Service show the FSM received retired pay but that he did not pay SBP premiums.  They also show that the applicant was paid the FSM's unpaid retired pay in the amount of $199.51 on     12 December 1984.

Public Law 92-425, enacted 21 September 1972 established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  Extensive publicity of this Open Season was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1.  Records at the Defense Finance and Accounting Service show that the FSM had received retired pay but that he never paid SBP premiums.  They also show that the applicant received his unpaid retired pay in December 1984.

2.  If the FSM had submitted a valid SBP enrollment form upon his marriage to the applicant in 1977, he had seven years in which to notice that no SBP premiums were being deducted from his retired pay.  He could have questioned it at any time or he could have enrolled during the 1981 - 1982 Open Season.  There is no evidence to show he ever questioned the lack of SBP premium deductions or that he ever attempted to re-enroll during the 1981 - 1982 Open Season.

3.  It is regrettable that the applicant was given incorrect information concerning filing a claim for the SBP annuity; however, in the absence of substantiating evidence such as the FSM's enrollment form it does not appear that failure to grant the applicant’s requested relief would be inequitable.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant married the FSM 11 years after his military career ended.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__INW__  ___WTM___  __CG  __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002074526	
SUFFIX		
RECON		
DATE BOARDED	2002/10/03	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.