MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 November 1999                   
	DOCKET NUMBER:   AR1999021272

	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:  That the Reserve Component Survivor Benefit Plan (RCSBP) election of her deceased spouse, a former service member (FSM), be changed from option A, deferred coverage to option C, immediate coverage.

APPLICANT STATES:  That she signed the DD Form 1883, Survivor Benefit Plan Election Certificate but she was not fully apprised of the consequences of this election at the time it was made.  She received no counseling.  If she had been properly counseled, she would not have consented to this election.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He was born on 15 December 1942.  He initially entered the U. S. Army Reserve on 2 February 1965, had Regular Army and National Guard service, and re-entered the U. S. Army Reserve on 21 September 1986.  

The FSM was apparently sent his notification of eligibility for retired pay at age 60 in November 1994.  On 15 February 1995, the FSM completed DD Form 1883 and elected RCSBP option A, declining to make an election at that time.  His spouse, the applicant, signed the DD Form 1883.  (There is evidence that the Army Reserve Personnel Center (ARPERCEN) did not process the DD Form 1883 until after the 90-day suspense, but the evidence also shows that the FSM completed it and it was received by ARPERCEN within the 90 day suspense.)

The FSM died on 31 August 1996.

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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  A married person who elects to provide a reserve-component annuity may not without the concurrence of his/her spouse elect to provide an annuity for his/her spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

In the processing of this case, an advisory opinion was obtained from the Army Reserve Personnel Command (SEE ATTACHED).  The opinion recommended disapproval of the applicant’s request.
A copy of the advisory opinion was provided to the applicant’s counsel for comment or rebuttal.  A response was not received within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  Spousal consent is not required when a member elects option A, RCSBP.  Congress provided for spousal consent only when a member makes an election to provide an annuity for a spouse at less than the maximum level or to provide an annuity for a dependent child but not for a spouse because these are irrevocable decisions affecting a spouse’s benefits.  An election of option A, to decline to make an RCSBP election at the time first eligible, is not an irrevocable decision; the member is given a further opportunity to participate in the SBP upon applying for retired pay at age 60 (at which time spousal consent would be required).

2.  The Board also does not agree with the applicant’s contention that she was not counseled regarding the consequences of the FSM electing option A.  A formal, face-to-face may not have been done; one is neither required nor possible in all cases.  However, directly above her signature on the DD Form 1883 is a clear explanation of each option with a note that clearly states that if the retiree does not elect options B or C and if he should die before age 60, the survivors would not receive benefits.

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	AR1999021272	
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.