MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2002
	DOCKET NUMBER:   AR2002074723

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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).

APPLICANT STATES:  The applicant makes no additional statement.  He provides his marriage certificate as supporting evidence.

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

He entered active service on 11 January 1952.  He was retired by reason of physical disability on 30 April 1953.  He married on 18 May 1974.

Records at the Defense Finance and Accounting Service – Cleveland Center show the applicant never enrolled in the SBP, that he has waived his retired pay (which would be under $600 a month) in lieu of receiving Department of Veterans Affairs (VA) disability compensation, and that he is currently rated by the VA as 100 percent disabled.  

Public Law 92-425, 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  

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.  Extensive publicity was given in Army Echoes.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  Extensive publicity was given in Army Echoes.

Title 38, U. S. Code, section 1311(a) provides that Dependency and Indemnity Compensation (DIC) shall be paid to a surviving (unremarried) spouse at the monthly rate of $850.00.  The rate shall be increased by $185.00 in the case of a veteran who at the time of death was entitled to receive compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death.  Only periods in which the veteran was married to the surviving spouse shall be considered.
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 evidence of record shows that the applicant never enrolled in the SBP.  He had the opportunity to do so on three different occasions after his marriage in 1974.  It would not be equitable at this date to show that he enrolled during any of the Open Seasons.

2.  Since the applicant is currently receiving VA compensation in lieu of retired pay, his widow, provided she did not remarry, would be eligible for DIC (a more remunerative benefit than would be SBP based upon his military retired pay).

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

__JNS __  __INW __  __JAM __    DENY APPLICATION

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

INDEX

CASE ID	AR2002074723	
SUFFIX		
RECON		
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.