MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           20 November 2003
		DOCKET NUMBER:  AR2003090124

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Robert Duecaster		Chairperson	
	Ms. Joann Langston		Member	
	Ms. Linda D. Simmons		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 military records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan for spouse coverage.

APPLICANT STATES:  That she was never given the opportunity to review and to agree upon her husband's nonselection of SBP.  She states that the FSM retired in August 1969 when he returned from Vietnam.  She also states that when the FSM returned from Vietnam, he had completed all of his retirement actions and paperwork but she was not present or asked if she agreed to his nonselection of SBP.  The applicant further states that before the FSM's death in February 2002, he always stated that she and their children would be taken care of because the military would provide for them.  Several months after his death, she realized there was not any money being deposited to their account by the U.S. Army.  The applicant states that the Mercer County Commissioners Department of Veterans Affairs informed her daughters that the FSM did not elect SBP upon his retirement.  She states that her husband was the family's sole provider throughout their lives and his retirement check enabled them to provide for their children and to pay the bills.  She states that the reversal of the FSM's records would be extra money coming in to assist her in her later years.  She truly believes that her husband had expected this to occur when he retired in 1969.  

In support of her application, she provided the FSM's Record of Honorable Discharge from the U.S. Army, his Certificate of Retirement, orders releasing him from active duty, his Certificate of Death, and his Application for a Marriage License.

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

After having had prior service, he enlisted in the Regular Army on 19 August 1952.  He married the applicant on 24 December 1952.

He continued to serve on active duty and retired from the Regular Army on 1 August 1969.

His AGPZ Form 977 (Data For Retired Pay) indicated a DA Form 1041 (Election of Options Under The Uniformed Services Contingency Option Act of 1953) was attached; however, it is not available.

On 12 February 2002, the FSM died of coronary artery heart disease.

Information obtained from the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio on 5 November 2003, revealed that the FSM did not apply for SBP.

Public Law 83-239, enacted 8 August 1953, established the Uniformed Services Contingency Option Act (USCOA).  It covered only persons dependent on the member at the time of his retirement.  An election had to be made before the end of the 18th year of service.

Public Law 87-381, enacted 4 October 1961, changed the USCOA to the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.  Retirees without USCOA coverage were offered the opportunity to enroll in the RSFPP.  It also covered only persons dependent on the member at the time of his retirement. 

Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The RSFPP was not automatically converted to the SBP. The surviving spouse and dependent children of a member who dies on active duty after becoming eligible to receive retired pay are automatically entitled to an SBP annuity.  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.  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 1 October 1991– 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.  Extensive publicity was given to this Open Season in Army Echoes.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  Extensive publicity was given to this Open Season in Army Echoes.

Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than maximum spouse coverage.  Neither spousal concurrence or notification is required when a member fails to enroll in the SBP during an open season.

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 evidence of record shows the FSM retired on 1 August 1969, prior to establishment of the SBP, and was married at that time.  

2.  The SBP was enacted in September 1972.  The FSM had four opportunities to enroll in the SBP.  There is no evidence of record which shows the FSM ever enrolled in the SBP.

3.  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

RD______  JL______  LDS_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003090124	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031120	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.0000	
2.		
3.		
4.		
5.		
6.