MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           16 October 2003 
		DOCKET NUMBER:  AR2003089775

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Mae M. Bullock		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) and the Retired Service Member Family Protection Plan (RSFPP).

APPLICANT STATES:  That at the time of her husband’s death, she was not listed as his surviving spouse.  She states that the FSM failed to correct his military record to reflect their marriage and therefore, he did not enroll the family into the SBP.  She further states that she should be afforded the opportunity to pay past premiums, which would allow her dependents and herself to receive a monthly annuity.

In support of her application, she submits a copy of the FSM’s Certificate of Release or Discharge (DD Form 214); a copy of his Certificate of Death; a copy a court certification of her marriage to the FSM; and copy of her Marriage Certificate, which reflects the FSM as her husband.

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

On 21 May 1959, he enlisted in the Air Force for 4 years, in the pay grade of E-1. At the time of his enlistment, the FSM indicated that his marital status was single. He successfully completed his training as a crypto repairman.  He had completed 4 years of total active service when he was honorably discharged on 20 May 1963, at the expiration of his term of service.  On 14 April 1964, the FSM enlisted in the Army for 3 years in the pay grade of E-2.  He remained in the Army through a series of continuous reenlistments.

He completed his required service for retirement and on 30 November 1980 he was transferred to the United States Army Reserve Control Group (Retired).  He had completed 20 years, 7 months and 17 days of total active honorable service. 

Prior to his retirement, the FSM completed a Data for Payment of Retired Army Personnel (DA Form 4240) that is contained in his Official Military Personnel File. Part IV of DA Form 4240 (Survivor Benefit Plan Election) indicates that at the time that he retired, he was unmarried and that he had no children.  The DA Form 4240 shows that he declined enrollment in the SBP.

The FSM married on 24 January 1981 and he died on 31 July 2002.

Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.
Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 through 20 March 1974).

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

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted from 1 October 1991 (but deferred to 1 April 1992) through 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity was given in Army Echoes.

Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted from 1 March 1999 through 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity was given in Army Echoes.

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.  While empathetic with the applicant’s situation, the Board concludes that it would not be appropriate to correct the FSM’s records to reflect that he elected to participate in a program which he clearly declined.

2.  The FSM married for the first time prior to the second SBP Open Season. Extensive publicity and information about the SBP was provided to all previously retired service members and he had several opportunities to enroll in the SBP.  Extensive publicity for the two subsequent Open Seasons of 1992 through 1993, and 1999 through 2000 was given in Army Echoes, which is sent to all retirees.  

3.  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 has failed to submit evidence that would satisfy this requirement.

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

__mb ___  ___hof __  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2003089775	
SUFFIX		
RECON		
DATE BOARDED	2003/10/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  346	137.0000/SBP	
2.  350	137.0400/CHANGE IN ELECTION	
3.		
4.		
5.		
6.