MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 July 2001                   
	DOCKET NUMBER:   AR2001055031

	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. Shirley L. Powell		Member	
	Mr. Donald P. Hupman, Jr.		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 was the FSM’s beneficiary on his military records for the entire time he was in the Army.  They were together for over 30 years.  She filed for a divorce in January 1982 but they never entered the separation agreement and they assumed the divorce was voided.  She provides several letters from her son and acquaintances attesting to the fact that she and the FSM lived together for years until his death.  She states the failure to enroll in the RCSBP was an oversight on his part but by waiting until he was 60 to elect the SBP would have meant more monthly retired pay.  The premiums could come from his retirement account.

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

He was born on 22 July 1950.  His marriage certificate is not available but his Statement of Personal History, DD Form 398, dated 8 June 1970 shows he was married to the applicant at that time.  After having had prior active duty, he entered the U. S. Army Reserve in January 1972.  His notification of eligibility for retired pay at age 60 (his 20-year letter), is dated 21 April 1997.

The applicant provides no divorce decree or other court documentation to show that the divorce never became final.

The FSM died on 1 November 2000 of acute coronary insufficiency.  The death shows the applicant was the informant and that he was married at the time.

Correspondence from AR-PERSCOM to the applicant dated 17 January and       6 February 2001 indicated that the FSM was mailed his SBP packet on 21 April 1997 and he failed to return the Survivor Benefit Plan Election Certificate, DD Form 1883, within 90 days.

Correspondence from AR-PERSCOM to the applicant’s Senator dated              13 February 2001 indicated that the applicant and the FSM were divorced at the time of his death and the service was not informed by either the FSM or the applicant of any redesignation.  It cannot be determined if AR-PERSCOM saw a divorce decree or used information given by the applicant.

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.

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 Board makes no determination about the applicant’s divorce since she provides neither the divorce decree nor other court documents to show that she and the FSM were not legally divorced.

3.  More pertinently, however, the evidence of record shows that the FSM failed to enroll in the RCSBP.  As the applicant acknowledges, waiting until the FSM was 60 to elect the SBP would have meant more monthly retired pay.  Many reservists make a conscious decision, a gamble that they will reach age 60, not to enroll in the RCSBP for just this reason.  Unfortunately, since the FSM never reached age 60 he never became eligible for retired pay so it would not be appropriate to take the RCSBP premiums out of retired pay to which he never became entitled.

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

__fne___  __slp___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001055031	
SUFFIX		
RECON		
DATE BOARDED	20010717	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.