MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 September 2000                   
	DOCKET NUMBER:   AR2000040210

	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. Hubert O. Fry, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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).  She also requests full identification card and DEERS (Defense Enrollment Eligibility Reporting System) privileges.

APPLICANT STATES:  That the FSM was not married when he received his notification of eligibility for retired pay at age 60 (his 20-year letter) and so he elected children only RCSBP coverage.  They married 3 years later.  In August 1999, the FSM completed the Data for Payment of Retired Personnel, DD Form 2656, designating her as his beneficiary for retired pay and the SBP.  He did not list his children at this time since they were no longer minors.  He died suddenly and without warning on 12 October 1999, only 3 months before his 60th birthday. About a month later she received a letter from the U. S. Army Reserve Personnel Command (AR-PERSCOM) informing her that she was to receive an annuity from the Defense Finance and Accounting Service (DFAS).  She was subsequently informed that she was not entitled to receive any annuity or privileges as the FSM died prior to his 60th birthday.  The FSM was unaware of the requirement to enroll her in the RCSBP within the first year of their marriage and believed his completing the DD Form 2656 would supersede the Survivor Benefit Plan Election Certificate, DD Form 1883.  He did this so she would be taken care of after his death.  Supporting evidence is as listed on the DD Form 149.

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

He was born on 15 January 1940.  After having had prior service in the Army National Guard, he reenlisted in the Alabama Army National Guard on 12 April 1975.

The FSM’s 20-year letter is dated 21 August 1986.  On 12 October 1986, he enrolled in the RCSBP for children only coverage, full base amount, option C.  He was unmarried at this time.

The FSM and the applicant married on 12 May 1989.  

On 16 April 1991, the FSM was discharged from the Army National Guard and transferred to the Retired Reserve.

On 18 August 1999, the FSM completed DD Form 2656.  He completed section VII, item 28 by electing SBP for spouse only.  The Forms Completion Instructions on page 2 of the DD Form 2656, for section VII, item 28 stated that that section should be completed “if you are retiring from active duty or if you are a reservist… who deferred SBP election until age 60.”

On 21 October 1999, the FSM died.  The death certificate notes the cause of death was an intracerebral hemorrhage caused by hypertension which had existed for the past 20 years.  

On 8 November 1999, AR-PERSCOM informed the applicant that DFAS would be notified to pay an annuity to her and that she would be mailed a Commissary Privilege Card, DD Form 2529.  To use her DD Form 2529, she would have to obtain a DD Form 1173-1, Identification Card, from the nearest military installation.  She was informed that at the time the FSM would have attained age 60, she would be entitled to a DD Form 1173, Uniformed Services Identification and Privilege Card.

Apparently, AR-PERSCOM later informed the applicant that she was not entitled to the RCSBP.  On 25 July 2000, AR-PERSCOM claimed that it was not their agency that informed the applicant she was not entitled to identification card benefits and that it may have been her servicing identification card facility or retirement services office that gave her that information.  AR-PERSCOM claims that they would not have denied her an identification card.  AR-PERSCOM’s response states in part “It may very well be that the data in the DEERS data base (run by dmdc) is bad and needs to be re-set by dmdc.”

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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage. 

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

Title 10, U. S. code, section 1448(5) provides that a person who is not married upon becoming eligible to participate in the Plan but who later marries may elect to participate in the Plan.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries.  

Army Regulation 600-8-14 prescribes policies and procedures for using and preparing identification documents and DEERS.  In pertinent part, it states that DEERS is a congressionally mandated program established to improve the control and distribution of available uniformed services benefits and privileges.  Enrollment in DEERS is mandatory for persons entitled to receive uniformed services benefits and privileges and Veterans’ Affairs benefits.  The Guard and Reserve Family Member Identification Card, DD Form 1173-1, is issued to family members of “gray area” Reserve retirees (those eligible for retired pay at age 60 but not yet age 60) and to the unremarried surviving spouse of “gray area” Reserve retirees when the sponsor dies before reaching age 60.  These family members are entitled to commissary, theater and exchange privileges.  The Uniformed Services Identification and Privilege Card, DD Form 1173 is issued to the surviving widow of a Reserve retiree at the time the sponsor would have reached age 60 and authorizes all privileges.  On 10 July 2000, the U. S. Total Army Personnel Command (PERSCOM) verified that the applicant would have been entitled to the DD Form 1173-1 and then the DD Form 1173, with entitlement to all privileges, on the date the FSM would have turned age 60.

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 FSM was not married at the time he received his 20-year letter and so enrolled in the RCSBP for children only coverage.  The DD Form 1883 stated that his decision to participate was a permanent irrevocable decision.  He married 3 years later.  As a noncommissioned officer, the FSM was aware that
having a new wife to support was a major change in his life that should have entailed research into its financial implications.  This was especially so since he had a medical condition, hypertension, that was known to have serious effects on life expectancy (as was so unfortunately later borne out).  The FSM was assigned to a unit which could have provided him such information.  He lived in a state that had at least two Army military installations at the time where he could have obtained information from full-time Retirement Services Officers.

2.  The FSM could have elected spouse RCSBP coverage during the             1992 – 1993 Open Season.  Unfortunately, he chose to wait an additional            6 years, when he applied for retired pay.  Also unfortunately, because he had elected the RCSBP earlier and had failed to enroll the applicant in the RCSBP within one year of marriage, he was not entitled to make an SBP election upon reaching age 60.

3.  As the FSM would have turned age 60 on 15 January 2000, the applicant is already entitled to full DEERS privileges.  She should contact the nearest identification card office per the instructions on AR-PERSCOM’s 8 November 1999 letter if she has not already done so.  If her identification card office is the agency informing her that she is not entitled to identification card privileges, she should direct them to the PERSCOM point of contact on the attached 10 July 2000 email message.

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

__hof___  __jpi___  __rks___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040210	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.