| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Mr. John N. Slone | Chairperson | ||
| Ms. Irene N. Wheelwright | Member | ||
| Mr. Jose A. Martinez | Member |
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
| 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. |
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