MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 August 2000                   
	DOCKET NUMBER:   AR2000037976

	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:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  In effect, that the FSM seemed confident that he had properly executed the Survivor Benefit Plan Election Certificate, DD Form 1883, but perhaps because of the metastasis of the cancer to his brain he could not say specifically when or where.  When he received his notification of eligibility for retired pay at age 60 (his 20-year letter) in 1986 (sic) he was in the process of getting a divorce from his third wife.  There appears to be no reason why the Survivor Benefit Plan Election Change, DD Form 1882, cannot be treated as a correct and timely filed DD Form 1883.  The entitlement of the FSM to benefits is clear and the Congressional intent of the SBP is that potential survivors will not be denied this benefit because of lack of knowledge, full understanding or opportunity to discuss the plan.  An exception should be made because there was no time for the Army to process retirement papers in the 4 to 5 weeks when his imminent death became apparent; no effort was made by his unit to retire him before he died; the FSM was the S-1 (personnel officer or adjutant) of his unit and therefore presumably knew the proper document upon which to request the SBP; and no copy of the DD Form 1883 can be found but the FSM’s execution of the DD Form 1882 indicated his belief that he had properly executed the DD Form 1883.

EVIDENCE OF RECORD:  The FSM's military records are not available.  The information contained herein was obtained from documents provided by the applicant and from the Army Reserve Personnel Command (AR-PERSCOM).

The FSM was born on 17 November 1942.  On an unknown date, he entered a Reserve Component.  His 20-year letter was mailed to him on 18 September 1985.  His divorce decree shows he married his third spouse on 7 December 1985.  There is no evidence of record to show that he made an RCSBP election within 90 days of receiving his 20-year letter.

On 20 April 1987, the FSM was divorced from his third spouse.  The divorce decree states “Petitioner and Respondent were married to each other on December 7, 1985 at … and cohabited together as husband and wife until on or about March 1, 1987 whereupon the parties separated.”

On 8 July 1995, the FSM and the applicant married.  Apparently, on 24 April 1996, the FSM completed DD Form 1882 requesting a change of SBP coverage from “no coverage” or “coverage for an insurable interest person” to “spouse coverage.”

Apparently, in December 1996 the FSM was diagnosed with cancer.  It went into remission, reappeared in September 1998 and, on 8 February 1999, he died.  
On 13 April 1999, AR-PERSCOM informed the applicant that a review of the FSM’s records determined that he had not enrolled in the SBP.  

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.  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.

Title 10, U. S. code, section 1448(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries may elect to participate in the 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.  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’s 20-year letter was mailed to him on 18 September 1985.  The evidence shows that, contrary to the applicant’s contention that the FSM was in the process of getting divorced when he received his 20-year letter, he had just gotten married before the end of the 90-day period provided to make an RCSBP election.  The evidence of record shows the FSM failed to make an RCSBP election even though he had just remarried.  

3.  The DD Form 1882 completed on 24 April 1996 clearly states that the FSM was changing his previous SBP election of “no coverage” or “insurable interest coverage” to spouse coverage.  Therefore, the Board concludes that the FSM understood that he had elected “no coverage” when he received his 20-year letter.  The law authorizes a member to participate in the SBP upon remarrying after becoming retirement eligible only if the member was not married at the time he became eligible to participate in the SBP.  In this case, the FSM became eligible to participate in the SBP at the time he received his 20-year letter.  However, he was married within the 90-day period after receiving his 20-year letter so he was not eligible to make an SBP election change in 1996.  His next opportunity to enroll in the SBP would have been upon his reaching age 60.  Unfortunately, he died before reaching that age.  

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

__gdp___  __clg___  __alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037976	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.