MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 October 1999                   
	DOCKET NUMBER:   AR1999022141

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Carol Jo Suiter		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 he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP), option C, full coverage.

APPLICANT STATES:  In effect, that she was never counseled, was never notified in writing of his election, and never gave her concurrence to the FSM’s electing a reduced amount of coverage.  This is contrary to law.  Supporting evidence is as listed on the DD Form 149.

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

He was a member of the Army National Guard when he was sent his notification of eligibility for retired pay at age 60 (his 20-year letter) on 16 September 1976.  

On 15 September 1979, the FSM elected to participate in the RCSBP for spouse and children coverage, reduced amount ($300.00), option C, immediate coverage.  The applicant signed the reverse of the form on this date.

The FSM died on 17 August 1998.

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. 

Currently, section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.  In 1979, the law provided that only spousal notification was required if a person elected to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

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.  The applicant had signed the DD Form 1883 and so was aware of the FSM’s election of reduced coverage.  The Board concludes that her signature indicated her notification of (and under current standards, her concurrence in) the election.

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

__rvo___  __rjw___  __cjs___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022141	
SUFFIX		
RECON		
DATE BOARDED	19991021	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.