MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 June 2000                   
	DOCKET NUMBER:   AR1999034694

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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:  That the two-year waiting period for the Survivor Benefit Plan (SBP) election of her deceased spouse, a former service member (FSM), be waived and she be determined to be eligible to receive the annuity.

APPLICANT STATES:  That the FSM and she devoted their entire lives to the military.  The FSM served 26 years in the Army and fought in two wars.  When he retired, they were both still young and he elected not to enroll in the SBP, feeling they needed the extra money in raising and educating their four children.  Later, when he did enroll, he was confident that if anything happened to him she would be taken care of.

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

After having had prior service in the National Guard and the U. S. Marine Corps, he enlisted in the Regular Army on 17 December 1954.  His DD Form 398, Statement of Personal History dated 19 December 1958 shows that he and the applicant were married at that time.  His DA Form 41, Record of Emergency Data, shows that the youngest of his four children was born on 16 September 1963.  He retired on 1 June 1976.

The FSM enrolled in the SBP for spouse coverage with an effective date of          1 April 1993.

On 26 January 1995, the FSM died.  

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. 

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

Public Law 101-189, enacted 29 November 1989, established a one-year Open Enrollment Season scheduled to begin 1 October 1991.  Public Law 101-510 delayed the implementation of the Open Season until 1 April 1992.  It required that enrollees live two years from the effective date of election for beneficiaries 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:  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 Board concludes from the evidence of record and the statement from the applicant that the FSM made a conscious decision to delay enrolling in the SBP as long as possible.  He elected to wait until the end of his third opportunity (between 1 April 1992 and 31 March 1993) to enroll.  He died three months short of the required two-year enrollment period that would make the applicant eligible to receive the annuity.

2.  Unfortunately, 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

__mkp___  __esc___  __jps___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034694	
SUFFIX		
RECON		
DATE BOARDED	20000607	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.