MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 August 2001                   
	DOCKET NUMBER:   AR2001055602

	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 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 no Survivor Benefit Plan Election Certificate, DD Form 1883, was ever sent to them; therefore, she was not given an opportunity to choose an option.

EVIDENCE OF RECORD:  The FSM's military records are not available.  Information contained herein was obtained from alternate sources.

The FSM was born on 29 June 1948.  On an unknown date, he enlisted in the    U. S. Army Reserve.  

The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 25 March 1999.  The 20-year letter was provided by the applicant with correspondence to her Congressman.  The 20-year letter states in part “By law, you have only 90 calendar days from the date you receive this memo to submit your DD Form 1883, Survivor Benefit Plan Election Certificate.  If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60.  If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits.  Enclosed is DD Form 1883 and detailed information about RC-SBP.”

The FSM died on 24 February 2001 at age 52 of artherosclerotic heart disease.

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.
If the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that election.

Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been made after 1 January 2001.

In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities Section, U. S. Army Reserve Personnel Command (AR-PERSCOM).  That office stated that the FSM was sent his 20-year letter and RCSBP enrollment data on 25 March 1999.  There is no record of the RCSBP application being returned.  The Command stopped sending the data to soldiers by certified/registered mail in 1996 due to the cutbacks in its budget.  The U. S. Postal Service has demonstrated a better than 99 percent delivery rate of First Class mail.  That office recommended disapproval of the applicant’s request.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  The applicant contended that AR-PERSCOM could not prove that they did not receive the application anymore than she could prove that the FSM did.  She stated that the U. S. Postal Service has a commendable record of delivery, but questioned the one percent who do not receive mail addressed to them.  She stated she has never seen the RCSBP enrollment form purportedly delivered to their address.  Her understanding is that she should have been notified of any option the FSM selected in regards to her future without him.  No notification was ever sent to her nor had she ever signed any document saying she agreed with the option.

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.  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 received his 20-year letter.  The applicant sent a copy of it to her Congressman.  As a senior non-commissioned officer, the FSM presumably read paragraph four and understood exactly what documents should have been enclosed.  If he had wanted to enroll in the RCSBP, he would have contacted AR-PERSCOM at that time and requested a replacement DD Form 1883.  There is no evidence to show that he did so.  

3.  The applicant’s rights were not jeopardized.  At the time, neither spousal notification (since the FSM did not make an irrevocable election to provide no or less-than-maximum coverage for her) nor spousal concurrence with his nonelection was required.

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

__jhk___  __tl____  __pm____  DENY APPLICATION

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

INDEX

CASE ID	AR2001055602	
SUFFIX		
RECON		
DATE BOARDED	20010823	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.