MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 August 2001                   
	DOCKET NUMBER:   AR2001055241

	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. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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 his brother, a deceased former service member (FSM), be corrected to show he received his notification of eligibility for retired pay at age 60 (his 20-year letter) and enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for children only coverage.

APPLICANT STATES:  That the FSM had 19 years, 10 months, and 9 days of qualifying service at the time of his death.  If he had lived, the FSM would have continued with his military service to at least his expiration term of service on      4 December 2003.  Since the FSM was divorced at the time of his death, the RCSBP would be distributed amongst his five children.

EVIDENCE OF RECORD:  The FSM military records show:

He was born on 19 January 1960.  He enlisted in the Regular Air Force on        27 August 1980 and was discharged on 15 February 1990.  He enlisted in the Army National Guard on 4 December 1990.  He died on 31 January 2001 at age 41.  At the time of his death, he was divorced with five children (the eldest born on 13 July 1981 and the youngest on 5 January 1993).  The Report of Casualty shows that all five children were residing with their mother at the time.  As of retirement year ending date 31 January 2001, he was credited with completing 19 years, 10 months, and 9 days of creditable service for a non-regular retirement.  Given the number of actual retirement points he had at the date of his death, his retired pay was calculated at $491.97.

Public Law 92-245, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity, 55 percent of their retired pay, after death to surviving dependents.  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.  Annuities for minor children are paid to the guardian.  Once a child reaches the age of majority, which varies by state, the SBP annuity is paid directly to the child.

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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  If death does not occur before age 60, the RCSBP costs are deducted from the member’s retired pay.

Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve soldier must 
complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60. 

In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  The NGB noted that the FSM died of heart disease prior to achieving 20 years of qualifying service for non-regular retirement.  NGB assumed that the FSM would have qualified for non-regular retirement within 60 days of his date of death.  They further assumed that, upon achieving 20 good years, he would have made an SBP election in favor of his five children.  NGB noted that there was allegedly no record of the heart disease in his physical examination.  His death was a complete surprise to his unit.

A copy of the advisory opinion was provided to the applicant for comment.  He made no comment concerning the advisory opinion.

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.  There is no evidence of Government error in this case.  The Board acknowledges that the FSM was less than 2 months away from becoming eligible for retired pay and eligibility to enroll in the RCSBP.  However, the Board does not agree with the NGB’s opinion that he would undoubtedly have made an RCSBP election in favor of his five children. 

2.  The FSM had just turned 41 years old when he died.  The FSM’s retired pay would have been approximately $491.00.  The RCSBP would have provided only 55 percent of that, or approximately $270.00, to his children.  That amount would have been even less considering RCSBP costs are deducted from the annuity if death occurs before age 60.  There is no evidence to show that the FSM ever intended that small amount of coverage to provide financial protection to his children.

3.  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

__jhk___  __tl____  __pm____  DENY APPLICATION

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

INDEX

CASE ID	AR2001055241	
SUFFIX		
RECON		
DATE BOARDED	20010823	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.