MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2001065549

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That if the FSM had known he had overlooked enrolling in the SBP at the time of his discharge he would be heartbroken.  She did not question him about what her financial picture would be as he always took such good care of her.  This alleged error was not discovered until after his death.

EVIDENCE OF RECORD:  The FSM military records show:

He was initially commissioned in 1937.  After having had a break in service, he re-entered active duty on 23 August 1948.  His retirement Report of Medical Examination, SF 88, dated 6 March 1963 shows he was married.  He retired on 31 May 1963 in the rank of colonel, O-6.  His Data for Retired Pay, AGPZ Form 977, showed he did not have a Retired Servicemen’s Family Protection Plan certificate, DA Form 1041, on file.

The FSM and the applicant married on 16 April 1994.  The FSM died on              6 November 2000.

Public Law 83-239, enacted 8 August 1953, established the Uniformed Services Contingency Option Act (USCOA).  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.  

Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The RSFPP was not automatically converted to the SBP.  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, later deferred to 1 April 1992 – 31 March 1993.  Extensive publicity of this Open Season was given in Army Echoes.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity of this Open Season was given in Army Echoes.

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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant does not present a convincing argument that the FSM overlooked enrollment in the SBP.  He retired before the SBP was established; however, there is no evidence to show he enrolled in either of the two previous survivor benefit programs available to him.  As a retiree he was mailed the Army Echoes bulletin which gave extensive information on the initial and subsequent opportunities to enroll in the SBP.  Although there was only one Open Season subsequent to his marriage to the applicant, there is no evidence to show he attempted to enroll in the SBP during that Open Season (acknowledging that the 2-year survivability clause would not have been met anyway).  Therefore, it appears that it was never his intention to enroll in the SBP.

3.  It does not appear that failure to grant the applicant relief would be inequitable.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant married the FSM 30 years after his military career ended.

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

__mdm___  __le____  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065549	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.