RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           3 February 2004                  
	DOCKET NUMBER:  AR2003089176

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

	Mr. Carl W. S. Chun		Director	
	Mr. Klaus P. Schumann		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, reconsideration of her request to correct her deceased spouse's, a former service member (FSM), records to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage.

2.  The applicant states, in effect, that it was her husband's intention to enroll her into SBP during the open enrollment period conducted from March 1999 - February 2000.

3.  In support of her application, the applicant provides a letter to the Defense Finance & Accounting Service (DFAS), dated 28 January 1999, which she contends supports her claim that her deceased husband intended to enroll in SBP for spouse coverage and a marriage certificate, dated 2 June 1975.

CONSIDERATION OF EVIDENCE: 

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002076608, on 10 October 2002.

2.  The applicant married the FSM on 2 June 1975.  On 28 January 1999, the FSM designated the applicant as the beneficiary for his unpaid retired pay.  He died on 26 January 2001.

3.  The FSM in a letter to DFAS, dated 28 January 1999, indicated in effect, that he understood that he should have enrolled in SBP during the first year after his marriage to the applicant and that it was his intention to enroll in SBP during the next open season.  

4.  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. 

5.  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.

6.  Public Law 97-35, Public Law 101-189, Public Law 101-510 and Public Law 105-261 established three Open Season's for the periods 1 October 1981 - 
30 September 1982, 1 April 1992 - 31 March 1993, 1 April 1992 - 31 March 1993, and 1 March 1999 - 29 February 2000, respectively.

DISCUSSION AND CONCLUSIONS:

1.  In his 28 January 1999 letter to the DFAS, the FSM stated his intent to enroll in the SBP during the next open season period.  However, the governing law stipulates, in effect, that a person who marries after obtaining eligibility for the SBP must submit his written election to enroll within a year of his marriage, or during any Open Season.  

2.  In this case, the FSM married the applicant on 2 June 1975.  There is no evidence in the FSM records and the applicant did not present any additional evidence which shows that the FSM took any formal action to enroll in SBP within the year after married as is required by law, or during any of the authorized Open Season periods.   Further, there is no indication that SBP enrollment was attempted by the FSM in the more than 20 years that passed between the enrollment eligibility period and his January 1999 letter to the DFAS.  Therefore, it would not be appropriate to grant the requested relief in this case.  

BOARD VOTE:

________  ________  ________      GRANT RELIEF 

________  ________  ________       GRANT FORMAL HEARING

•	_RKS___  __SAC___  __CLG__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002076608, dated 10 October 2002.

		Samuel A. Crumpler
		   CHAIRPERSON

INDEX

CASE ID	AR2003089176	
SUFFIX		
RECON	AR2002076608	
DATE BOARDED	2003/12/03	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  346	137.0000	
2.		
3.		
4.		
5.		
6.