MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 February 2001                   
	DOCKET NUMBER:   AR2000047863

	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. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		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 that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That it saddens her to think that her children may not receive benefits because of a form he failed to sign in May 1990.  The FSM loved the Army but he also loved his family.  In May 1990, they were told that their daughter (the FSM’s stepdaughter) had cancer and had only 6 months to live.  The FSM and their daughter were very close.  He spent most of his time at the hospital or at home with her until her death.  His mental state at the time from dealing with her death may have caused him to overlook completing this form.

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

After having had service in the Army National Guard, he entered the U. S. Army Reserve on 11 October 1973.

The FSM and the applicant married on 3 August 1989.

The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 21 May 1990.  It was sent to him by certified mail on 28 July 1990.

The FSM completed a Record of Emergency Data, DD Form 93 on 14 June 1990.  The form lists his marital status as divorced and lists three children born on 11 August 1968, 28 December 1971 and 29 July 1974, respectively.  His stepdaughter is not listed.  He completed a Servicemen’s Group Live Insurance Election, VA Form 29-8286 on this date also.  His three children are listed as principal beneficiaries.  A later VA Form 29-8286, dated 7 December 1992 listed his three children and the applicant as the principal beneficiaries at one-quarter share each.

On 10 November 1990, the FSM’s stepdaughter died of adenocarcinoma.  The approximate interval between onset and death was one year.

On 7 December 1992, the FSM completed a new VA Form 29-8286.  He listed his spouse (the applicant) and his three children as principal beneficiaries.

On 28 December 1992, the FSM died of gastrointestinal bleeding due to esophageal varices, portal cirrhosis, and hepatic failure.

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.  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 statement accompanying the applicant’s DD Form 149 implies that she is requesting RCSBP children only coverage.  The Board presumes that she may have been otherwise provided for, a presumption somewhat confirmed by noting that the FSM failed to provide for her in completing his DD Form 93 and VA Form 29-8286 on 14 June 1990.  (He then provided her with a one-quarter share as a principal beneficiary on a later VA Form 29-8286.)ltr

2.  The Board notes that the FSM received his 20-year letter on or about 28 July 1990, only a few short weeks after he took positive action that affirmed that he was aware that he had dependents to provide for.  The 20-year letter contained instructions concerning the RCSBP, another way to provide for his dependents.  
The FSM may have believed that since one child was already over 18, one was soon to be 18, and the other 16 years old that they were all old enough not to need the additional protection.  The applicant has provided insufficient evidence to show that it was the FSM’s intent to provide the RCSBP for the few short years his children would have been eligible for it.

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

__rvo___  __sk____  __tsk___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047863	
SUFFIX		
RECON		
DATE BOARDED	20010222	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.