MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 September 1999                   
	DOCKET NUMBER:   AR1999021278

	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. Erin J. Olmes		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Christopher J. Prosser		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 records of her deceased spouse, a former service member (FSM), be corrected to show that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) prior to his death.

APPLICANT STATES:  An SBP annuity was originally approved by the U. S. Army Reserve Personnel Center (ARPERCEN) in 1995.  It was disapproved in 1998 by the Army Reserve Personnel Command (AR-PERSCOM), formerly ARPERCEN.  Her spouse was suffering from a brain tumor and was not in full use of his faculties.  If he had been, she is sure he would have selected immediate coverage based on his full retirement pay.

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

The FSM was born on 20 January 1939.  He enlisted in the Army National Guard on 6 September 1954.  He and the applicant married on 23 April 1960.  He voluntarily transferred to the U. S. Army Reserve (Retired Reserve) on              20 September 1974.  His notification of eligibility to receive retired pay at age 60 (his 20-year letter) was sent to him on 11 February 1977.  He enlisted in the Texas Army National Guard on 22 February 1978.  

On 13 September 1979, ARPERCEN sent the FSM an SBP information packet by registered mail.  The election form was not returned.

On 16 June 1982, the FSM was separated from the Texas Army National Guard and transferred to the Retired Reserve.

The FSM died on 11 February 1995.

On 12 June 1995, the applicant requested her SBP payments and forwarded a copy of her marriage certificate and the FSM’s death certificate.  On 31 August 1995, ARPERCEN responded with a form letter informing her, in part, that the Defense Finance and Accounting Service (DFAS) would be notified and authorized to pay an annuity to her as the beneficiary.

On 31 March 1998, the applicant sent a second request to AR-PERSCOM.  This letter may have been a response to an earlier disapproval.  The applicant’s letter states “…but did not share with me or his family the opportunity to enroll in the Survivor Benefit Program…If allowed to participate, I am sure he would have selected immediate coverage based on his full retirement pay…”

On 9 December 1998, AR-PERSCOM denied the applicant’s request and refered to a “final decision made by DFAS.”  

Public Law 92-245, 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. 

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

Public Law 97-35, enacted 12 August 1981, established an Open Season from    1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

Public Law 101-189 established an Open Season to be conducted 1 October 1991 – 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

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

On 29 June 1999, the applicant was requested to provide evidence of the FSM’s medical condition/brain tumor.  She responded by providing a record of the FSM’s medical treatment.  One consultation note dated 31 May 1994 states ”This is a 55 year old …who presented in May with a two month history of headaches and dizziness…”

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  When a widow applies to ARPERCEN/AR-PERSCOM requesting SBP payments, the Retirement Services Branch sends a form letter to that person outlining her benefits as determined by a review of the FSM’s records.  Unfortunately, it appears that in this case the Retirement Services Branch sent the wrong form letter to the applicant because the evidence of record shows the FSM never elected to participate in the RCSBP.  The evidence of record does show that the FSM was sent an SBP information packet by registered mail on   13 September 1979; however, the election form was not returned.

3.  The FSM was first offered the opportunity to participate in the RCSBP in September 1979.  He failed to respond to this opportunity.  Two more opportunities were available to him during the 1981 – 1982 and the 1992 – 1993 Open Seasons.  There is no evidence of record to show he elected to participate in the RCSBP during one of these Open Seasons and the applicant has not provided such evidence.

4.  The applicant further contends that the FSM failed to make an RCSBP election because he was suffering from a brain tumor and did not have full use of his faculties.  However, the evidence she has provided shows the FSM was first diagnosed with a brain tumor in May 1994 after suffering symptoms since about March 1994.  This was a year after the latest Open Season closed and so the Board concludes that the FSM’s failure to enroll in the RCSBP during this period was not the result of his illness.

5.  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

__ejo___  __inw___  __cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021278	
SUFFIX		
RECON		
DATE BOARDED	19990909	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.