MEMORANDUM OF CONSIDERATION

IN THE CASE OF 

BOARD DATE:           2 February 2000                  
DOCKET NUMBER:   AR1999034578

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Lester Echols		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: Reconsideration of her late husband’s application to correct the former service member’s (FSM) records by showing entitlement to Retired Serviceman’s Family Protection Plan (RSFPP).

APPLICANT STATES:  In effect, that she defers to counsel for argument.

COUNSEL STATES:  In effect, that the RSFPP election form was inartfully worded and vague concerning the requirements for participation in the program.  Counsel contends that there is nothing in the record that documents that the applicant was properly advised of the three-year service requirement and that the form is materially misleading on this point.  Counsel requests that the record be corrected to show that the FSM made his election in a timely manner or that his retirement date be adjusted to satisfy the requirements of the RSFPP.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 21 June 1995 (COPY ATTACHED).

The counsel’s contention of material misrepresentation of requirements was not previously considered by the Board, this constitutes new argument that requires Board review.

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 the wording of the election notification may not be the best or to the liking of counsel, the Board is of the opinion that it is not ambiguous or misleading.  The referenced block deals with changes to prior elections and not to a new application.  The form clearly notes that the FSM had in excess of 18 years of service when he requested participation in the program.  With this number of years of service the only way the applicant could participate in the program was to agree to the three additional years of service requirement.  There has been no showing that any required counseling was omitted. 

2.  There is no indication that the FSM appealed or even questioned his non-entitlement at any time between the 1968 notification and his death in 1971.  This leads the Board to conclude that the FSM knew and accepted that he was not entitled to the program.  Further, it was not until 1994 that the former serviceman’s wife raised the question of entitlement to RSFPP, twenty-three years after the FSM’s death and twenty-six years after notification that the FSM was not entitled to the program.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__CMF__  __JEA __  ___LE___  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034578	
SUFFIX		
RECON	 	
DATE BOARDED	20000202	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.