MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 January 2002                   
	DOCKET NUMBER:   AR2001063754

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Kenneth W. Lapin		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 his records be corrected to show he enrolled in the Survivor Benefit Plan (SBP) within one year of his marriage.

APPLICANT STATES:  That he was not married at the time he retired and believes this caused the retirement services officer (RSO) to omit eligibility information should he get married in the future.  He married in June 1995 but did not pursue enrolling at the time on the premise that the retirement date was the only opportunity to join the program.  It was not until late 1999 that the legal assistance officer at Redstone Arsenal, AL made him aware that he would have been eligible to enroll within one year of his marriage.  He then contacted the retired pay office at the Defense Finance and Accounting Service (DFAS) and was told that he would have to wait for an Open Season.  An Open Season had just passed.

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

After having had prior service, he entered active duty as a commissioned officer on 13 October 1964.  He retired as a Colonel, O-6 on 1 May 1992.  At that time he was not married and had no dependent children and declined to participate in the SBP.  He married on 12 June 1995.

Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provides 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 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

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 that there is no evidence of Government error or injustice in this case.

2.  The applicant was a senior commissioned officer.  Despite what he was briefed on three years earlier during his pre-retirement briefing, it was his responsibility to seek out the current facts if he was interested in providing SBP coverage for his new spouse.  The Board presumes he obtained an identification card for his new spouse but he provides no evidence to show he inquired about the SBP at the same time and was provided incorrect information.  There is no evidence he sought advice from the same or a different RSO.  He should have been receiving the retiree bulletin Army Echoes, which had extensive publicity about the 1999 – 2000 Open Season over several issues.  He states he learned in late 1999 that he should have enrolled in the SBP within one year of his marriage yet it appears he waited several months before he contacted DFAS for more information.  Had he immediately contacted DFAS, he would have learned that he had until 29 February 2000 to enroll in the SBP.  

3.  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

__jlp___  __cjp___  __kwl___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063754	
SUFFIX		
RECON		
DATE BOARDED	20020117	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.