RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 April 2006
      DOCKET NUMBER:  AR20050008620


      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. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John G. Heck                  |     |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 she is not denying that the FSM did not enroll in
the SBP; however, due to his 100 percent disability (chronic brain
syndrome), he could not understand the papers sent to him.

3.  The applicant provides a DA Form 199 (Physical Evaluation Board
Proceedings) dated 3 June 1971; orders removing the FSM from the Temporary
Disability Retired List (TDRL); a letter from her Representative in
Congress dated 18 April 2005; a letter from the Defense Finance and
Accounting Service to her Representative in Congress dated 5 April 2005;
their marriage certificate; and his death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 1 June 1954.

2.  The FSM was injured in Vietnam.  On 29 March 1967, he was placed on the
TDRL due to epilepsy; chronic brain syndrome associated with brain trauma
with rather marked impairment of recent and past memory recall; loss of
part of the skull; and limited motion of temporomandibular articulation.

3.  In May 1971, the FSM underwent a TDRL re-evaluation.  The TDRL Medical
Evaluation Board (MEB) found the FSM to be unfit due to encephalopathy,
secondary to cerebral trauma; skull defect; and hearing loss.  The MEB also
found the FSM to be mentally competent for pay purposes and to have the
capacity to understand the nature of, and to cooperate in, Physical
Evaluation Board (PEB) proceedings.

4.  On 3 June 1971, a TDRL PEB found the FSM to be unfit due to chronic
brain syndrome associated with trauma and manifested by impairment of
recall, poor intellect, poor judgment, and shallow affect; chronic
headache; inability to work; complete inadaptability; and loss of part of
the skull.  On 31 July 1971, he was removed from the TDRL and permanently
retired.

5.  On 13 January 1983, the FSM and the applicant married.

6.  The FSM died on 8 March 1996.

7.  Public Law 92-425, enacted 21 September 1972, 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.

8.  Public Law 98-94, enacted 24 September 1983, established an Open Season
from 23 September 1983 through 24 September 1984.  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.

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
Open Season to 1 April 1992 through 31 March 1993.

DISCUSSION AND CONCLUSIONS:

1.  The reason for the FSM's disability retirement (i.e, primarily chronic
brain syndrome) has been carefully considered.  However, it is noted that
when the FSM was given his TDRL MEB in 1971, the MEB found him to be
mentally competent for pay purposes.  It cannot be determined if the FSM
was married (although not to the applicant) when the SBP was established.

2.  The FSM married the applicant in January 1983.  Presumably, he was
mentally competent when he entered into that marriage.  Two SBP Open
Seasons were established after the FSM and the applicant married.  There is
no evidence to show the FSM attempted to enroll in the SBP during those
Open Seasons or that he was incompetent to understand that he could have
enrolled during those Open Seasons.

3.  Regrettably, there is insufficient evidence on which to base granting
the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rld___  __rr____  __jgh___  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.




                                  __Robert L. Duecaster_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008620                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060418                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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