MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 December 2000                   
	DOCKET NUMBER:   AR2000040993

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 the FSM was ill with cancer for 2 years.  He died before he could complete his retired pay paperwork.  He worked for the Army for 26 years so he could collect his retirement.  She feels she is entitled to the annuity.

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

He was born on 30 November 1939.  After having had prior service in the U. S. Navy and U. S. Navy Reserve, he enlisted in the U. S. Army Reserve on             29 October 1979.

The FSM’s notification of eligibility for retired pay at age 60 is dated 4 December 1996.  He apparently was not married at this time and apparently did not elect to enroll in the RCSBP.

The FSM and the applicant married on 28 November 1997.

On 8 July 1998, the FSM’s doctor noted that he had undergone “bilateral neck dissection, full course radiation therapy and implantation of the base of tongue squamous cell carcinoma.”  

On 4 July 1999, the FSM died of a severe electrolyte disturbance as a consequence of anorexia and metastatic cancer of the appendix.

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(a)(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.  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.  

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 had a one year opportunity after he married the applicant in November 1997 to enroll in the RCSBP.  He knew during that one-year period that he had cancer and yet he elected to wait until he reached age 60.  Unfortunately, he died 4 months prior to reaching age 60.  

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

__fne___  __lem___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040993	
SUFFIX		
RECON		
DATE BOARDED	20001212	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.