MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 September 2003  
	DOCKET NUMBER:   AR2003084284

	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. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Frank C. Jones		Member	
	Ms. Barbara J. Ellis		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 changed to reflect that he elected to participate in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  She knows that the FSM's service records will clearly indicate that he served his country and served it well.  She does not understand why there are no survivor benefits.  She is receiving social security on a monthly basis and she needs these benefits to take care of herself on a day to day basis. Her husband never indicated to her that he had any other plans and wishes for these benefits and she always understood from him that she would receive these benefits.  She is requesting that her request be reviewed again for SBP.  She has never asked for anything from the Army until now.  She truly believes that this was an oversight with the paperwork and not her husband's true intentions.  In support of her application the applicant submits a copy of her marriage license; a copy of the FSM's death certificate; a copy of a memo from the Defense Finance and Accounting Service, Cleveland, Ohio, dated 6 March 2002; and a copy of a letter from the applicant's daughter.

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

On 18 June 1940, the FSM enlisted in the Army of the United States for 3 years.
The FSM and the applicant married on 16 August 1948.  On 1 October 1968, the FSM retired from active duty.  He completed 27 years, 6 months, and 27 days of active service and retired in pay grade E-8.  

AGPZ Form 977 (Data for Retired Pay) filed in the FSM's service record, dated 
9 September 1968, (initial submission) indicated no DA Form 1041 on file for the Retired Servicemen's Family Protection Plan (RSFPP).  AGPZ Form 977 also filed in the FSM's record dated 3 October 1968 amended item 30 indicating that the DA Form 1041 was attached.  However, the DA Form 1041 is not attached.

The FSM died on 12 January 1999.

Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The RSFPP was not automatically converted to the SBP.  Upon creation of the SBP, an 18-month Open Season was conducted from 
21 September 1972 - 20 March 1974, in which all pre-1972 retirees were given the option to enroll.  The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by SBP.  This was done on several occasions.  First, a bulletin was sent out describing SBP.  The bulletin was followed by a circular and then by a letter 

which included a form, which when completed and returned would extend the benefits of SBP to those already retired.  A final notice provided a box to check on a postal card indicating the retiree's intention. 

Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

Public Law 101-189, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

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.  The Board considered the applicant's request for survivor benefits.  The Board is empathetic with the unfortunate circumstances the applicant now finds herself in.  However, the Board concludes that there is no evidence of Government error or injustice in this case.

2.  The evidence of record shows that the FSM had the opportunity to participate in the RSFPP.  The DA Form 1041 indicating his RSFPP election is not available.
In any case, an RSFPP election did not rollover into the SBP.

3.  The evidence of record shows that the FSM had several opportunities to enroll in SBP and that the program was given extensive publicity when it was established in 1972.  

4.  The applicant's records show that he failed to enroll in the SBP when it became established in 1972.  His records also show that he failed to enroll in the SBP during the 1982 open season and the 1992 open season.  

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant provides no evidence to show that the FSM intended to enroll in SBP.

6.  Regrettably, 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

__rvo___  __fcj___  __bje    ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084284	
SUFFIX		
RECON		
DATE BOARDED	20030904	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.