MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 September 1999                   
	DOCKET NUMBER:   AR1999020803

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

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That the FSM had elected to participate in the Retired Serviceman’s Family Protection Plan (RSFPP) but because he died before becoming eligible for retired pay she is not entitled to an annuity.  He died just 31 days before the establishment of the RCSBP and she requests the Board waive these few days so she may receive an RCSBP annuity.  Supporting evidence is as listed on the DD Form 149.

COUNSEL CONTENDS:  Counsel makes no contention.

EVIDENCE OF RECORD:  The FSM's military records show:

He was born on 24 July 1921.  He and the applicant married on 8 February 1942. After having had prior active duty in an enlisted and commissioned status, he entered the Army National Guard in 1947.  

On 6 December 1964, the FSM elected to participate in the RSFPP to provide one-half of his retired pay to his widow.  He received his notification of eligibility for retired pay at age 60 (his 20-year letter) in 1968.  He was transferred to the Retired Reserve in 1969.

The FSM died on 29 August 1978 at age 57.  

Public Law 87-381, enacted 4 October 1961, established the RSFPP.  It provided for an annuity of one-half, one-fourth or one-eighth to a person dependent on the member at the time of his or her retirement.  Coverage was only effective if the member lived to age 60 to receive retired pay.  

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 

Public Law 105-85, enacted 18 November 1997, provided an SBP annuity for surviving spouses of a Reservist who died between 21 September 1972 and       1 October 1978 and who at time of death would have been entitled to retired pay but was not yet age 60.  The surviving spouse must not have remarried or otherwise be entitled to SBP or Dependency and Indemnity Compensation (DIC).

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.  While empathetic with the applicant’s situation, the Board concludes it would not be appropriate to correct the FSM’s records at this time to reflect he elected to participate in a program for which he might have chosen any one of three options.  One of the options, A, would have left her in the same situation she is currently in.

2.  However, Congress has considered widows in the applicant’s situation by passing Public Law 105-85 on 18 November 1997.  She should read the attached article on “forgotten widows” and contact the nearest Retirement Services Officer to apply for this benefit.

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

__mkp___  __clg___  __jpi___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020803	
SUFFIX		
RECON		
DATE BOARDED	19990922	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.