RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           11 March 2004                 
	DOCKET NUMBER:   AR2003091601

	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. John N. Slone		Chairperson	
	Ms. Mae M. Bullock		Member	
	Mr. Patrick H. McGann		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, that she be provided Survivor Benefit Plan (SBP) benefits based on the open enrollment election of her deceased husband, a former service member (FSM), to participate in the program.  

2.  The applicant states, in effect, that she believes that she is entitled to SBP benefits based on her husband's service in the Army during two wars.  Further, she claims that it was her husband’s belief that the Army would take care of her after his death based on his election to participate in the SBP during the open enrollment season.  She further states that she stood by her husband during their forty years of marriage, which included his service in the Army, which should be a consideration in deciding this case.  She also states that she and the FSM did not elect to participate in the SBP at the time of his retirement because they felt they needed the extra money to raise and educate their four children.

3.  In support of her application, the applicant provides copies of the following documents:  a self-authored letter; a letter of support from the FSM's daughter; five separation documents (DD Forms 214) issued to document periods of service ending between 16 December 1957 and 16 November 1972; Special Orders Number 52, issued by Headquarters, United States Army Infantry Center, Fort Benning, Georgia, dated 22 March 1976; a SBP Open Enrollment election form (DD Form 2618), dated 11 March 1993; a medical consultation report, dated 5 February 1993; a medical consultation report, dated 8 February 1993; a letter from the Medical College of Georgia, dated 8 February 1993; a letter from the Medical College of Georgia, dated 11 April 1994, a doctor’s letter, dated 10 June 1994; the FSM’s death certificate; and a letter from the Defense Finance and Accounting Service, dated 14 October 1999. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests, in effect, waiver of the law that requires a retiree to survive two years from the date of enrollment before a beneficiary is eligible for an SBP annuity.

2.  Counsel states, in effect, that the FSM signed an SBP open enrollment election form on 11 March 1993, in which he directed that his SBP benefits be paid to his spouse.  He further states that the FSM died 44 days prior to the completion of the two year waiting period required before his spouse would have been eligible to receive the SBP annuity.  

3.  Counsel further indicates that as is the case with many widows, the applicant spent more than 20 years moving around the world with her husband to accommodate military service.  After losing her husband to medical complications from Wegener’s disease, the applicant is now in her sixties, has been left with little to no income and has been forced to return to work full time.  

4.  Counsel provides a self-authored letter in support of this application. 

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 AR1999034694 on 7 June 2000.

2.  The medical statements, medical consultations, statement provided by the FSM's daughter, and the counsel letter provided in support of the application are considered new evidence that requires reconsideration by the Board.  

3.  The FSM’s Enlisted Qualification Record (DA Form 20) shows, in
Item 38 (Record of Assignments), that he entered active duty in the Army on 
17 December 1954, after having previously served in the Army National Guard and the United States Marine Corps.  Item 31 (Foreign Service) shows that he completed an overseas tour in the Republic of Korea (ROK) and two tours in the Republic of Vietnam (RVN).  The applicant was retired from the Army on 31 May 1976, after completing 24 years, 6 months and 2 days of service.

4.  The applicant's separation document (DD Form 214) shows, in
Item 26 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that during his military service tenure, he was awarded the National Defense Service Medal, Good Conduct Medal (4th Award), Army Commendation Medal, Bronze Star Medal, Vietnam Service Medal with one silver star and two bronze service stars, Vietnam Campaign Medal with 1960 device, Vietnam Cross of Gallantry with Palm, Four Overseas Service Bars, Ranger Tab, Expert Infantryman Badge, Parachutist Badge, Drivers Badge, 
Air Medal, Combat Infantryman Badge and the Naval Occupation Medal.

5.  On 11 March 1993, the FSM completed a DA Form 2618 in which he elected spouse only SBP coverage at the maximum amount.  Item 7d (Date of Marriage) of this form confirms that the applicant and FSM were married on 2 July 1955.  Processing documents on file confirm when he began the process, his intent was to enroll effective 1 December 1992.  

6.  Medical documents on file indicate that the applicant was diagnosed with a serious medical condition prior to his election to participate in the SBP during the open enrollment period.  However, none of the medical documents made available to the Board, prepared prior to the FSM’s 11 March 1993 SBP election, contain a terminal prognosis or indicated that death was imminent.  

7.  The supporting statement now provided by the FSM's daughter raises the possibility that negligence on the part of the medical staff caring for the FSM contributed to his pre-mature death.  

8.  Public Law 92-245, 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.

9.  Public Law 97-35, Public Law 101-189, Public Law 101-510 and Public Law 105-261 established three Open Seasons 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.  These laws required that enrollees live two years from the effective date of election in order to be eligible for an annuity.  The election would become effective the first day of the month following the month the finance center received the election.  Premiums would be deducted during the two-year period but would be refunded to the designated beneficiary in the event the member died before the end of the two-years.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the FSM and his spouse were married on 2 July 1955, seven months after the FSM entered active duty.  They remained married until the FSM’s death on 26 January 1995, which included 24 years of the FSM’s active duty service in the Army.  

2.  The evidence of record further shows that the applicant began the process to enroll in the SBP with the intent of enrolling with an effective date of 1 December 1992; however, his formal enrollment was not accomplished until 11 March 1993, and he died on 26 January 1995, less than two months prior to the two year period required to gain eligibility for SBP benefits.  It is noted that had his processing been completed and his enrollment effected as he originally intended on 1 December 1992, eligibility for SBP benefits would have been met on the date of his death.  

3.  The facts of this case confirm that the applicant was married to the FSM for nearly his entire military career and endured the difficulties of military life for that entire period.  Further, the available medical evidence while confirming a serious medical condition, does not contain a medical prognosis that indicates that the FSM’s condition was considered terminal or that death was imminent at the time he made his SBP election.  These factors coupled with the fact the FSM died less than two months short of the two-year period required for his spouse to obtain benefits and would have been entitled to benefits had he been enrolled on 1 December 1992, as he originally intended, seem to support relief in the interest of compassion and equity.  

4.  Further, while not substantiated by medical evidence and alone not a basis for approval, the statement of the FSM’s daughter, which indicates that negligence on the part of health care workers may have contributed to the FSM’s premature death, provides an additional mitigating factor in the timing of the FSM’s death that should be considered.  

5.  The evidence clearly establishes that the FSM originally intended to enroll in the SBP on 1 December 1992.  Lacking evidence that confirms he knew he was terminally ill when he made his SBP election on 11 March 1993; and given his clear intent to provide protection for his spouse and the factors raised by the new evidence provided, it is concluded that it would serve the interest of compassion and equity to provide the requested relief. 

6.  The original Board decisional document indicates that the FSM did not initially elect SBP coverage because he was concerned with being financially able to care for his family, which included three minor children.  Although it has been determined that relief in this case is warranted in the interest of equity and compassion, the SBP is funded by the premiums of those who elect 
coverage.  As a result, it would serve the  interest of those who have borne the program’s cost over the years to correct the FSM’s record to show he enrolled in the SBP on 1 October 1981, the first day of the open enrollment season in which he was eligible to enroll after his retirement and which also coincides with his youngest child reaching the age of majority.  This alternative would provide a viable premium contribution to the SBP, and still provide protection to the applicant.  

BOARD VOTE:

__JS__  _PM___  __MB__     GRANT RELIEF 

________  ________  _____  GRANT FORMAL HEARING

________  ________  _____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR2003091601, dated 7 June 2000.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the FSM enrolled in the Survivor Benefits Plan with an effective date of 1 October 1981.

2.  That the Defense Finance and Accounting Service collect all Survivor Benefits Plan premiums due beginning 1 October 1981 through 31 December 1994.  Further, that DFAS determine the amount of any back annuity due the FSM's spouse and provide payment as is appropriate.

		John N. Slone
	                                              CHAIRPERSON

INDEX

CASE ID	AR2003091601	
SUFFIX		
RECON		
DATE BOARDED	2004/03/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1976/05/31	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON	Retirement	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.SBEffDt	137.0200.0000	
2.		
3.		
4.		
5.		
6.