MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 November 1999                   
	DOCKET NUMBER:   AR1999021246

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Stanley Kelley		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 significant other, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for natural person with insurable interest coverage only.

APPLICANT STATES:  That the FSM did not have a dependent child at the time he died.  On the date the FSM elected to participate in the RCSBP, his son was 18 years old.  He graduated from high school in May 1997 and is no longer in school.  She provides the FSM’s death certificate and the FSM’s son’s birth certificate as supporting documentation.

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

That he was born on 18 July 1951.  After having had prior service in the U. S. Marine Corps, the U. S. Marine Corps Reserve, and the Army National Guard, he enlisted in the U. S. Army Reserve on 12 January 1980.

The FSM received his notification of eligibility to receive retired pay at age 60 (his 20-year letter) on 20 November 1996.  

On 18 February 1997, the FSM completed DD Form 1883, Survivor Benefit Plan Election Certificate.  At that time he checked that he elected coverage for dependent children and natural person with insurable interest (the applicant).  The form clearly states that a natural person with insurable interest may be elected only if the member has no spouse and/or children.  He did not check if he elected to provide the annuity based on his full or a reduced portion of his retired pay.  He did not check which payment option he desired.  The form was not witnessed.  

The FSM died on 9 September 1997 of cancer of the esophagus.

On 4 November 1998, the Army Reserve Personnel Command (AR-PERSCOM) informed the applicant that, as the FSM had a dependent child at the time he became eligible to participate in the SBP, he was not authorized to designate her as an insurable interest and so she was not entitled to receive the SBP annuity.

Public Law 92-245, the SBP, enacted 21 September 1972, 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.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  A dependent child means a person who is unmarried, is 

under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school or other recognized educational institution.

Public Law 95-397, the Reserve Component SBP, 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.

The Defense Finance and Accounting Service – Denver has confirmed that no one is receiving the FSM’s SBP annuity.

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.  There is evidence of government administrative error.  The Board concludes, from the numerous errors on the DD Form 1883 and the lack of a witness’ signature, that the FSM was improperly counseled on the RCSBP prior to completing the form.  

2.  However, the Board concludes that these errors do not negate the basic fact of law of which AR-PERSCOM informed the applicant.  At the time the FSM became eligible to participate in the RCSBP he did have a dependent child who may have elected (and still may elect) to attend further schooling prior to reaching age 22, and so by law he could not elect natural person with insurable interest coverage.  Even though the FSM may not have been properly counseled regarding the RCSBP at the time, this information was clearly stated on the DD Form 1883.

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

__fne___  __esc___  ___sk___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021246	
SUFFIX		
RECON		
DATE BOARDED	19991103	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.