RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            9 September 2004
      DOCKET NUMBER:   AR2004102540


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Linda D. Simmons              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The 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).

2.  The applicant states, through her daughter, that the FSM was under the
impression the Army would take care of her in the event of his death.  The
FSM retired in 1970 and she is sure he had no knowledge, when the SBP came
into effect, that he would have to do anything further in order to protect
her interest at the time of his death.  She supported the FSM 100 percent
and never complained when she had to uproot her six children to be where he
was.  Now, the Army is turning its back on her.  She is 68 years old and
her only income is Social Security and what little Social Security the FSM
had.  Her home is not paid for and the FSM had no life insurance.

3.  The applicant provides the marriage certificate, the death certificate,
and the FSM's DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) for the period ending 30 April 1970.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 23 March 1950.  He married the
applicant on 11 November 1953.

2.  The FSM's DA Form 2339 (Application for Voluntary Retirement) shows he
did not make an annuity election under the Retired Serviceman's Family
Protection Plan (RSFPP).

3.  The FSM retired on 30 April 1970.  He died on 20 October 2003.

4.  Public Law 83-239, enacted 8 August 1953, established the Uniformed
Services Contingency Option Act (USCOA).  It provided for an annuity after
death to a person dependent on the member at the time of his retirement.

5.  Public Law 87-381, enacted 4 October 1961, changed the USCOA to the
RSFPP.  It also provided for an annuity after death to a person dependent
on the member at the time of his retirement.

6.  Public Law 990-485, enacted 13 August 1968, provided that an RSFPP
election had to be made before the member completed 19 years of service.

7.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and
established the SBP.  Upon creation of the SBP, an 18-month Open Season
was conducted from 21 September 1972 through 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.

8.  Public Law 97-35, enacted 12 August 1981, established the second Open
Season from 1 October 1981 through 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.

9.  Public Law 101-189, enacted 29 November 1989, established an Open
Season to be conducted 1 October 1991 through 30 September 1992.  Extensive
publicity was given in Army Echoes.

10.  Public Law 101-510, enacted 5 November 1990, delayed the start of the
third Open Season to 1 April 1992 through 31 March 1993.

11.  Public Law 105-261, enacted 17 October 1998, established an Open
Season to be conducted 1 March 1999 through 29 February 2000.  Extensive
publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM did not enroll in the RSFPP, while
he was still on active duty, to provide an annuity for the applicant after
his death.

2.  The FSM retired on 1 May 1970.  When the SBP was established on
      21 September 1972, an 18-month Open Season was conducted during which
time 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.

3.  After the initial Open Season, the Army conducted three additional Open
Seasons during the periods October 1981 through September 1982, April 1992
through March 1993, and March 1999 through February 2000.  Each of these
Open Seasons was publicized extensively 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.

4.  There is no evidence to show the FSM ever attempted to enroll in the
SBP during any of the highly publicized Open Seasons.  There is no evidence
to show that he ever paid for annuity protection for the applicant.

5.  Regrettably, there is no evidence to show that the FSM ever intended to
enroll in the RSFPP or the SBP.  Therefore, there is no evidence on which
to base granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jev___  __jea___  __lds___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ___James E. Vick______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102540                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040909                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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