MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 October 1999                   
	DOCKET NUMBER:   AR1999022234

	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. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Roger W. Able		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 she be entitled to the Survivor Benefit Plan (SBP) annuity of her deceased spouse, a former service member (FSM).

APPLICANT STATES:  That she was told she is ineligible for the SBP due to a statute of limitations.  At the time the FSM died in 1982, with the help of her brother-in-law, who was then recently retired as the Army’s Financial Officer at Fort Benjamin Harrison, IN, she contacted the Army.  She was told she could not apply for survivor benefits until the year the FSM would have turned 62 years old, which would have been in 1997.  She was quite busy with family concerns in 1997 and 1998 and only now has time to address this situation.  A copy of the FSM’s death certificate is provided as supporting evidence.

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

He was born on 4 February 1935.  After having had prior enlisted service and service on active duty as a commissioned officer, he entered the U. S. Army Reserve.  On 21 March 1977, he received notification of eligibility for retired pay at age 60 (his 20-year letter).  He was transferred to the Retired Reserve shortly thereafter.  

The FSM died on 22 August 1982.

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.  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).  An Open Season was established from 1 October 1978 – 30 September 1979; later extended to 31 March 1980.

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.

There is no DD Form 1883, Survivor Benefit Plan Election Certificate or other evidence of record to show that the FSM elected to participate in the 
RCSBP.  Neither the Army Reserve Personnel Command nor the Defense Finance and Accounting Service have a record to show the FSM elected to participate in the RCSBP.

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 FSM would have realistically had only one opportunity to enroll in the RCSBP, during the initial October 1979 – March 1980 Open Season.  (He could have had enrolled during the October 1981 – September 1982 Open Season; however, he would not have lived for the required two years to make the applicant eligible for an annuity.)  However, there is no evidence of record to show that he did so nor has the applicant provided such evidence.

3.  The Board can make no conclusions as to why the applicant was informed she could not apply for survivor benefits until the year the FSM would have turned 62.  The age 62 has never figured into RCSBP coverage.  (It may figure into Social Security benefits.)  If the applicant can provide a copy of the FSM’s DD Form 1883, and if he elected option B, the statute of limitations would not apply and she may be eligible for RCSBP benefits.

4.  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

__aao___  __vbc___  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022234	
SUFFIX		
RECON		
DATE BOARDED	19991006	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.