MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 August 2000                   
	DOCKET NUMBER:   AR2000036043

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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 children of her deceased spouse, a former service member (FSM), be entitled to receive his Reserve Component Survivor Benefit Plan (RCSBP) annuity.

APPLICANT STATES:  That the FSM enrolled in the SBP during the last Open Season, while on his deathbed, to make his two young children his beneficiaries. He was very weak but of sound mind.

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

He was born on.  After having had prior enlisted service, he was commissioned and entered active duty on 30 January 1970.  He was released from active duty on 21 May 1972.  He served off and on with the U. S. Army Reserve and the Army National Guard and reentered the U. S. Army Reserve on 30 January 1987.  

The FSM received his notification of eligibility for retired pay at age 60 (his 20-year letter) around 1995.  The letter is not available.  He did not elect to participate in the RCSBP at that time.  His SGLV Form 8286, Servicemen’s Group Life Insurance Election and Certificate dated 24 September 1995 shows that the applicant was listed as “friend” and that he had two children (born on    , respectively).  He was transferred to the Retired Reserve on 1 February 1998.

The FSM apparently became ill with non-Hodgkins’ lymphoma about December 1998.  On 10 December 1999, the FSM completed DD Form 1883, Survivor Benefit Plan Election Certificate, enrolling in the RCSBP for children only coverage, option C.  The base amount is not listed.  The form indicates he married the applicant on this date.  The FSM died on 23 December 1999.

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.  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.
Public Law 105-261, enacted 17 October 1998, established an Open Season from 1 March 1999 – 29 February 2000.  The cost of enrollment during this Open Season was expensive.  A lump sum enrollment premium was required calculated using a cost factor which considered past premiums not paid, interest and the actuarial soundness of the Military Retirement Trust Fund.  Three payment plans were available:  (1) lump sum at enrollment; (2) 24 equal monthly payments or (3) combination of lump sum and 24 equal monthly payments.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities Section, U. S. Army Reserve Personnel Command.  That office opined that the election of the FSM was valid; however, it was not payable as he did not meet the eligibility requirement to live for two years after enrollment.  A copy of the opinion was provided to the applicant.  She did not respond 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, 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 this requirement.

2.  The FSM elected not to participate in the RCSBP when he had the opportunity to do so in 1995 even though he had two young children at the time. He took his chances he would survive until age 60.  Unfortunately, he became deathly ill before he turned age 50.  He learned about the SBP 1999 – 2000 Open Season from the “Army Echoes” and enrolled in the SBP during that Open Season.  The DD Form 2656-3, Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election, in that issue of the “Army Echoes” notes in the instructions for section III that a member must live for 24 months from the effective date in order for the beneficiary to receive an annuity.  Sadly, the FSM survived for only two weeks.

3.  Regrettably, 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

__svw___  __mhm___  __lds___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036043	
SUFFIX		
RECON		
DATE BOARDED	20000817	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.