| Mr. Carl W. S. Chun | Director | |
| Mr. W. W. Osborn, Jr. | Analyst |
| Ms. Shirley L. Powell | Chairperson | |
| Mr. Regan K. Smith | Member | |
| Mr. John P. Infante | Member |
APPLICANT REQUESTS: Reconsideration of her earlier appeal to correct her former husband’s (the deceased former service member) military records by showing that she is entitled to survivors benefit program (SBP) benefits.
APPLICANT STATES: In effect, that since the Army does not have any documents to show that the applicant elected not to participate in SBP, she should be entitled to the benefits. She claims that she has been told that participation was automatic and that, unless he took affirmative action to dis-enroll the premium was automatically deducted from his retired pay. Additionally, the applicant states that she believes that she is entitled to the proceeds from his Servicemembers’ Group Life Insurance (SGLI). She also requests copies.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999025218) on
17 November 1999.
The applicant’s contentions are new argument that requires Board consideration.
Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. Paragraph 2-9, Burden of proof, states “the ABCMR begins consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or an injustice by a preponderance of the evidence.”
Paragraph 2-15 of the regulation provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence had been submitted.
The regulation provides further guidance, in sub-paragraph 2-15b, for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.
Title 10, United States Code, section 1552 is the law that provides for boards of correction of military records. It provides, in pertinent part, that “No payment may be made under this section for a benefit to which the claimant might later become entitled under the laws and regulations administered by the Secretary of Veterans Affairs.”
SGLI is supervised by the Department of Veterans Affairs but is administered by the Office of Servicemembers’ Group Life Insurance under the terms of a group insurance policy. SGLI can be converted to Veterans’ Group Life Insurance (VGLI) within 120 days of separation from active service. VGLI like SGLI is supervised by the Department of Veterans Affairs but is administered by the Office of Veterans’ Group Life Insurance under the terms of a group insurance policy.
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. Contrary to the applicant’s assertions, it is her responsibility to demonstrate that there is an error or an injustice in the record. The mere fact that she has not received any benefit from the deceased FSM’s service or from his death does not demonstrate an injustice.
2. SGLI would have had to be converted to VGLI within 120 days of the FSM’s separation from active service. This Board has no jurisdiction over the FSM’s SGLI or VGLI in any case.
3. This Board is not the custodian of the FSM’s military records. Once the original case was decided his records were returned to the repository in St. Louis. To obtain copies of service record documents the applicant needs to submit a request (along with sufficient documentation to show that she has a legitimate status) to the National Personnel Records Center.
4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.
5. 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
__SP ___ __RKS__ __JPI____ DENY APPLICATION
Carl W. S. Chun
| CASE ID | AR2001052469 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20010322 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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