MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 January 2001                   
	DOCKET NUMBER:   AR2000045573

	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. June Hajjar		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen A. Heinz		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) for spouse and child coverage.

APPLICANT STATES:  That the FSM had recently married her and had a child from that marriage.  He did not intend to leave these dependents without some provisions for care.  At the time the FSM was eligible for the RCSBP, he was married to A___ but his marriage was in turmoil.  He suspected A___ of plotting his death.  At the time of his retirement, he was separated from A___ and divorced her shortly after his retirement.  She and the FSM married in July 1998 and had a child in April 1999.  She believes the FSM was unaware that he could elect SBP coverage after his new marriage.

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

He was born on 9 February 1951.  He enlisted in the Army National Guard in 1969 and transferred to the U. S. Army Reserve in 1972.  The FSM and A___ married on 22 December 1989.  His Record of Emergency Data, DD Form 93, and his Servicemen’s Group Life Insurance Election and Certificate, SGLV Form 8286, both dated September 1995 show he had a son, date of birth unknown.  The son’s last name was the same as the FSM’s and the son’s address was the same as A___’s.

The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 28 December 1990.  He signed for the letter and SBP packet on 30 March 1991 but failed to return the Survivor Benefit Plan Election Certificate, DD Form 1883, within 90 days.

On 17 September 1997, the FSM and A___ divorced.  Although there is no specific mention of the RCSBP in the divorce decree, A___ clearly stated that she waived any possible surviving spouse’s claims or rights of inheritance.  It states that there were no minor children.

The FSM and the applicant married on 3 July 1998.  On 7 April 1999, a daughter was born to the FSM and the applicant.  On 21 September 1999, the FSM died of an acute myocardial infarction.

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 and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  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 or acquires that dependent child.  

The term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.

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 evidence of record shows the FSM failed to elect RCSBP at the time he received his 20-year letter.  He was still legally married and it appears he had a dependent child at that time.  Because he was married and had a dependent child at the time he could have enrolled in the RCSBP but elected not to enroll. He was ineligible to enroll the applicant when they married or his new child when she was born.  His next opportunity to enroll them in the SBP was when he turned age 60.  Unfortunately, he died before turning age 60.

2.  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

__jh____  __le____  __kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045573	
SUFFIX		
RECON		
DATE BOARDED	20010125	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.