RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 January 2006
      DOCKET NUMBER:  AR20050006132


      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. Patrick H. McGann             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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, 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) for spouse coverage.

2.  The applicant states she and the FSM were married for 15 1/2 years.
The FSM always believed the Army would pay her a portion of his retired
pay.  He did call and tell the Army they were married.  She received a
letter wherein she was told the Defense Finance and Accounting Service
(DFAS) would pay her the annuity if she agreed to pay all the back
premiums.

3.  The applicant provides their marriage certificate; the death
certificate; her military identification card; a 30 October 2002 letter
from her Representative in Congress; and a 23 October 2002 letter from the
Department of Veterans Affairs.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the FSM enlisted in the Regular Army on
3 May 1963.

2.  The FSM retired on 1 October 1979.  He was not married at the time and
had completed his DA Form 4240 (Data for Payment of Retired Army Personnel)
to indicate he elected to participate in the SBP for natural person with
insurable interest (his brother) coverage.

3.  On 1 December 1982, the FSM requested his enrollment in the SBP be
terminated.  He stated he had been improperly counseled and did not know
how expensive the SBP would be.  On 1 February 1983, the Department of the
Army SBP Board met and determined administrative correction of the FSM's
records was appropriate.  His SBP election was invalidated and he was
refunded all costs deducted from his retired pay.

4.  The FSM and the applicant married on 15 November 1986.  The FSM died on
15 June 2002.

5.  By letter, dated 23 October 2002, to the applicant's Representative in
Congress, the Department of Veterans Affairs informed the Representative
that DFAS had informed them it was possible for the applicant to receive
the SBP if she agreed to first pay the premiums from the date of marriage
to the date of the FSM's death.

6.  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.

7.  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, 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.

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

9.  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.

10.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is
not married and 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 AND CONCLUSIONS:

1.  There is no evidence of record to show it was the FSM's intent to
provide the SBP to the applicant.

2.  The FSM never paid spouse SBP costs.  He knew the SBP had to be paid
for, as he had SBP premiums deducted from his retired pay for about three
years prior to terminating his insurable interest coverage.  Open
enrollment seasons were available twice after the FSM and the applicant
married.  If he thought he had enrolled the applicant in the SBP after
their marriage, and thought the Government erred by not deducting premiums,
he could have enrolled for certain during one of the Open Seasons.  There
is no evidence to show he attempted to do so or otherwise sought to have
the "error" corrected.

3.  It is acknowledged the applicant was married to the FSM for about 16
years.  However, in the absence of substantiating evidence, 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 seven years after
his military career ended.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__phm___  __rdg___  _rch____  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.




                                  __Patrick H. McGann__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006132                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060124                                |
|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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