ABCMR Memorandum of                                                             AR2002077690
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002077690

	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. Raymond J. Wagner | | Chairperson
| Mr. Roger W. Able | | Member
| Mr. John T. Meixell | | 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 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 she found out after the FSM died in January 2000 that he had not elected to enroll in the SBP.  The election of "no beneficiary" as shown on the Defense Finance and Accounting Service - Cleveland Center's (DFAS-CL's) system is incorrect.  She married the FSM in 1955, so she is a beneficiary.  She knows she must pay back the SBP costs.

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

After having had prior service, he reenlisted in the Regular Army on 3 August 1950.  He and the applicant married on 15 July 1955.

On 6 November 1957, the FSM completed an Election of Options Under the Uniformed Services Contingency Option Act of 1953, DA Form 1041.  He indicated that he did not desire to receive reduced retired pay in order to provide an annuity for his dependents.  

The FSM retired on 1 July 1963.  DFAS-CL's records show he had no SBP beneficiary effective 1972.  He died on 31 January 2000.

Public Law 83-239, enacted 8 August 1953, established the Uniformed Services Contingency Option Act (USCOA).  An election to provide an annuity of one-half, one-quarter, or one-eighth of the member's retired pay had to be made before the end of the 18th year of service.  It covered only persons dependent on the member at the time of his retirement.  

Public Law 87-381, enacted 4 October 1961, changed the USCOA to the Retired Serviceman's Family Protection Plan (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.  It also covered only persons dependent on the member at the time of his retirement. 

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 an Open Season to be conducted 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.  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.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  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.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity 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 evidence of record shows that three years after the FSM and the applicant married, the FSM had an opportunity to enroll in the USCOA.  At that time he declined to reduce his retired pay in order to provide an annuity for his dependents.  There is no evidence to show he enrolled in the RSFPP, the successor to the USCOA.  Records at DFAS-CL show that he failed to enroll in the SBP when it was established in 1972 and there is no evidence to show he attempted to enroll during a subsequent Open Season.  Unfortunately for the applicant, it appears that the FSM had no intention of enrolling 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

__RJW__  __RWA__  __JTM__  DENY APPLICATION

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

INDEX

CASE ID | AR2002077690
SUFFIX |
RECON |
DATE BOARDED | 2002/10/10
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 137.04
2. |
3. |
4. |
5. |
6. |