MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            1 July 2003       
	DOCKET NUMBER:   AR2003084831

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen Y. Fletcher		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:  That the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That the Army failed to notify the FSM of his option to participate in the SBP.  She has retained every piece of paper ever received from the Army during his service and since his retirement.   She can find no evidence that anything was ever received that notified him of the SBP.  There is no question that had he been notified of the opportunity to enroll in the SBP he would have done so.  She remembers the FSM enrolled in the Retired Serviceman's Family Protection Plan (RSFPP) that entitled her to a portion of his retired pay after his death.  She understands that any decision by a member to not participate in the SBP must be agreed to by his spouse.

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

After having had prior service, he reenlisted in the Regular Army on 24 October 1955.  He retired on 1 February 1967.  His AGPZ Form 977 (Data for Retired Pay) originally contained an entry that a DA Form 1041 (Retired Servicemen's Family Protection Plan) was attached; however, that entry was erased and the entry that no DA Form 1041 was on file was checked.  (There is no DA Form 1041 in his records.)

The FSM died on 26 March 1994.

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 through 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 the 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 through 30 September 1982.  Extensive publicity about 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. 

Public Law 99-145, enacted 8 November 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991.  Extensive publicity was given in Army Echoes about this Open Season.

Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 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.  There is no evidence of Government error or injustice in this case.

2.  Although the applicant contends she remembers the FSM enrolled in the RSFPP and that she has retained every piece of paper the FSM ever received from the Army, she does not provide a copy of the DA Form 1041.  There is no DA Form 1041 in the FSM's records and his AGPZ Form 977 indicated there was no DA Form 1041 on file.  

3.  In any case, the RSFPP did not automatically convert into the SBP.

4.  The FSM had several opportunities to enroll in the SBP.  Four notifications were sent to retirees during the initial Open Season from 21 September 1972 through 20 March 1974.  Notifications for two subsequent Open Seasons were made through Army Echoes.  The Board is not convinced the FSM did not receive any of these notifications.

5.  Public Law 99-145 required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.  As the FSM was already a retired member when the SBP was established, the applicant's concurrence with a decision not to enroll in the SBP does not apply.

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

__tsk___  __mhm___  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084831	
SUFFIX		
RECON		
DATE BOARDED	20030701	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.