| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | ||
| Mr. John P. Infante | Member | ||
| Ms. Paula Mokulis | Member |
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 the FSM decided not to enroll in the SBP when he retired, a decision he later regretted deeply. She never had the opportunity to review the options or to elect that she wanted the SBP. She would have liked to have done so, seeing this decision would have a direct impact on her later on. She would have made this request sooner but only recently learned that she could petition the Board to correct the FSM’s records. She is more than willing to pay any premiums that would be due.
COUNSEL CONTENDS: Counsel makes no additional contention.
EVIDENCE OF RECORD: The FSM's military records show:
After having had prior service in the National Guard, he enlisted in the Regular Army on 13 May 1954. He retired on 1 February 1976. At that time, he completed a Data for Payment of Retired Army Personnel, DA Form 4240, and declined to enroll in the SBP. The DA Form 4240 indicates the applicant was not available for counseling but was informed by letter dated 29 December 1975 of the FSM’s decision.
The FSM died on 23 August 1983.
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. Retiring members and spouses were to be informed of the SBP options and effects.
Public Law 97-35, enacted 12 August 1981, established the second Open Season from 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.
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 Board is empathetic with the applicant’s circumstances; however, there is no evidence of Government error in this case.
2. Spousal concurrence with a member’s declination to participate in the SBP was not required at the time the FSM retired, only spousal notification. The DA Form 4240 indicates the applicant was sent notification that the FSM had declined to participate in the SBP.
3. The FSM had the opportunity to enroll in the SBP during the 1981 – 1982 Open Season. The two-year survivability requirement would not have been met; however, his enrollment would have indicated his intent to provide the SBP for the applicant. This Open Season was extensively publicized; however, there is no evidence to show that he attempted to enroll during this period.
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
| CASE ID | AR2002070342 |
| 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. |
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