MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            6 July 2000                  
	DOCKET NUMBER:   AR1999027075

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 daughter, a former service member (FSM), be corrected to show she elected to participate in the Survivor Benefit Plan (SBP) within 90 days of her retirement, with her as beneficiary.  

APPLICANT STATES:  That the FSM elected to participate in the SBP and designated her as beneficiary.  

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

The applicant was born on 27 November 1953.  On 28 October 1976, she reenlisted in the Regular Army for a period of 4 years, and was honorably discharged on 27 October 1980, for completion of required service.   

On 28 October 1980, she enlisted in the U.S. Army Reserve for a period of          6 years.

In October 1994, the FSM was sent her 20 year letter/packet, with the return receipt signed on 24 October 1994.  Paragraph three of the letter states, in highlighted, capitalized and underlined form, that “By law, you have only 90 calendar days from the date you receive this letter to submit your Survivor Benefit Plan election certificate (DD Form 1883)….should you die before age 60, there will be no benefits for your survivors.”  It also states”...and blank DD Form 1883 are enclosed.”  

There is no evidence of record to show the FSM completed a DD Form 1883.

On 9 November 1994, the FSM was assigned to the Retired Reserve, as a Master Sergeant E-8, after 20 years of Reserve service.  

On 31 January 1996, the FSM died of multiple injuries she received from a climbing accident. 

Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

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.  Premiums for insurable interest coverage are generally higher than for any other category of coverage.

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.  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.

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.  The law, the governing regulation, and the FSM’s 20-year letter are very explicit on when a Reserve component member may elect to participate in the RCSBP/SBP – within 90 days of receiving his/her 20-year letter or when he/she applies for retired pay.

2.  There is no evidence and the applicant provides none to show that the FSM elected RCSPB within 90 days.       

3.  The circumstances of the applicant are unfortunate; however, this Board believes that the FSM was fully informed at the time she received her 20-year letter that once she failed to respond within 90 days to RCSBP participation that her next opportunity to participate would be when she applied for retired pay at age 60.

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

___cmf__  ___emw__  ___jpi___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999027075	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000706	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 137.00		
2.		
3.		
4.		
5.		
6.