MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002068150

         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 V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		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)

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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 at the time the FSM was eligible to enroll in the SBP, he was critically ill. He suffered from deep depression, had artery surgery in January 1983, and was hospitalized for three months in 1992 with pneumonia. She was married to him for 19 years and took care of him and should be entitled to part of his retired pay. She provides his death certificate and medical records as supporting evidence.

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

After having had prior service in the U. S. Navy, he enlisted in the Regular Army on 30 September 1947. He retired on 1 February 1972. There is no Record of Emergency Data on file for the FSM and it cannot be determined if he was married at the time he retired.

The FSM and the applicant apparently married on 23 October 1982.

Available medical records show the FSM underwent a right carotid endarterectomy (removal of the plaque from an artery) in March 1982. He was without any transient ischemic attack symptoms until 17 October 1983. At that time he was examined and a neurological examination revealed him to be alert, oriented times three with intact speech, to have good comprehension with appropriate affect and no aphasia (loss of the power of expression of or the comprehension of the spoken or written word) or apraxia (loss of ability to move). He was having no symptoms referable to his right carotid artery. He underwent a left carotid endarterectomy on 26 October 1983.

In 1988, the FSM underwent a venous digital subtraction angiogram which demonstrated an occluded left internal carotid artery with a stump at the site of the endarterectomy. He underwent an inguinal hernia repair in April 1990. In April 1991, he underwent a repair of a pseudoaneurysm of the left internal carotid artery. Around October 1991, he was diagnosed with multiple transient ischemic attacks, chronic obstructive pulmonary disease, and peripheral vascular disease.

The FSM died on 28 March 2001. The immediate cause of death was listed as pneumonia, renal failure, and myocardial infarction. Contributing causes were listed as cerebrovascular accident, lung cancer, and chronic obstructive pulmonary disease.

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 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).

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

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 FSM retired before the SBP was established. He underwent his first carotid endarterectomy in March 1982 but it appears he had no further transient ischemic attack symptoms until October 1983 (at which time a neurological examination revealed him to be alert and to have good comprehension). The applicant and the FSM married in October 1982 shortly after the second SBP Open Season closed on 30 September 1982. Because the FSM should have been receiving Army Echoes just prior to his marriage, he should have been aware that there was a survivor benefit program available. Since his marital status had just changed, it appears that he was competent enough during the one-year period after his marriage to have inquired about the program if it had been his desire to do so. There is no evidence to show he made such inquires at the time.

2. It is acknowledged that the FSM may have been too ill to have made efforts to enroll in the SBP during the next two Open Seasons (acknowledging that the 2-year survivability clause may not have been met anyway during the last Open Season). However, again, since there is no evidence to show that it was his intent to enroll in the SBP when he had the opportunity to do so earlier when it appears he was not so ill, there is no evidence to show that it would have been his intention to do so during one of the later Open Seasons.

3. It is acknowledged that the applicant was married to the FSM for 19 years and cared for him during his illnesses. However, it does not appear that failure to grant the applicant’s requested 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 10 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

_RVO___ ___JPI__ __PM____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068150
SUFFIX
RECON
DATE BOARDED	2002/05/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	137.02
2.
3.
4.
5.
6.