MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 December 2000                  
	DOCKET NUMBER:   AR2000040251

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		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:  In effect, 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:  That she signed for the RCSBP packet.  She does not know if the FSM ever received it; she or one of the children could have just tossed it in the wastebasket without it ever being opened.  The FSM worked in his unit’s administrative personnel section and would have known the importance of having official forms signed.  She does not know what Title 10, U. S. Code, chapter 67 (mentioned in the FSM’s 20-year letter) is but she knows what it   says – eligibility cannot be denied nor revoked, etc.  She has no source of income.  How can she support herself and a daughter in college?  

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

He was born on 24 August 1943.  He enlisted in the U. S. Army Reserve in September 1964.  He was promoted to Master Sergeant, E-8 on 3 February 1977.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 29 November 1984.  The letter informed the FSM that he had 90 days in which to participate in the RCSBP and that detailed information and the election of option forms were enclosed.  The applicant signed for the letter on                    5 December 1984.

On 15 July 1985, the U. S. Army Reserve Components Personnel and Administration Center (RCPAC) wrote a form letter to the FSM informing him they had not received his election of options and that therefore his survivors would not receive an annuity should he die before reaching age 60.  

On 23 July 1999, the FSM died.  

Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  Paragraph 2-3 states that by law each Reserve components soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing within 1 year after he or she has completed that service.  A copy of the notification will be made a permanent part of the soldier’s Military Personnel Records Jacket (MPRJ) and Official Military Personnel File.

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

In the processing of this case, an advisory opinion was obtained from the Transitions and Separations Branch, U. S. Army Reserve Personnel Command (successor to RCPAC).  That office noted that the FSM was sent his 20-year letter on 29 November 1984 and the applicant signed for it on 5 December 1984. When no response was received from the FSM, he was sent a second letter in July 1985.  The FSM did not respond to that letter.  The FSM made no further contact with the Reserve Center and made no attempt to enroll in the RCSBP during an Open Season.  That office opined that the FSM was an experienced noncommissioned officer with experience in unit paperwork, and thus aware of the importance of such, and so made a deliberate decision not to enroll in the RCSBP.  That office recommended that relief be denied, noting that as tragic as it may be for the applicant, the FSM made his own choice and failed to take the actions to protect them.  

A copy of the advisory opinion was provided to the applicant for rebuttal.  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, and advisory opinion, 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.  This Board does not agree with the applicant’s contention that the FSM may not have received his 20-year letter.  Perhaps the most important document in a Reservist’s military career to obtain is the 20-year letter because with it he or she is assured of receiving retired pay.  As a senior non-commissioned officer, the FSM presumably would have been looking for his letter beginning around September 1984.  The Board concludes that if he had not received in within a few months of that time he would have contacted RCPAC inquiring about it.  

3.  Since the FSM did not make inquiries to RCPAC about his 20-year letter, the Board concludes that he either received it when the applicant signed for it or he found the copy filed in his MPRJ.  If he found the copy filed in his MPRJ, the Board concludes that, as a senior noncommissioned officer, he read the letter, understood that an RCSBP packet would have been enclosed with the original, and if he desired to enroll in the RCSBP he would have contacted RCPAC for the election forms.  Since he did not contact RCPAC, the Board concludes that he made a deliberate decision not to enroll in the RCSBP.

4.  The applicant is correct about what the FSM’s 20-year letter says about Title 10, U. S. Code, chapter 67 – eligibility cannot be denied or revoked, etc.  However, the first part of that sentence must also be read.  Eligibility for retired pay cannot be denied or revoked; no other benefits are mentioned.  

5.  Unfortunately, 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

__rvo___  __ewl___  __jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040251	
SUFFIX		
RECON		
DATE BOARDED	20001207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.