MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  23 October 2001
	DOCKET NUMBER:  AR2001058547

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Allen L. Raub		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 she, the widow of a deceased former service member (FSM), be entitled to benefits under the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That her husband, a deceased FSM, was entitled to Reserve retired pay but never submitted the proper paper work.  The Army Reserve Personnel Command (AR-PERSCOM) denied her claim for RCSBP.  She also states that the current RCSBP Election Certificate (DD Form 1883) cannot be located.  She submits a copy of her record of marriage, the certificate of death, and a copy of his Notification of Eligibility for Retired Pay at Age 60   (20-Year Letter) in support of her application.

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

He served in the Army Reserve from 21 December 1955 to 16 May 1967, and in the Army National Guard from 27 February 1970 to 20 August 1981.  He was transferred to the Retired Reserve effective 20 August 1981, with 22 years, 10 months, and 20 days total service for pay.

On 11 May 1981, the FSM was issued a 20-year letter by the National Guard Bureau.  A RCSBP Summary is listed as an enclosure to the letter.  The available records show that he was married with four dependent children on the date of the 20-Year Letter.  There is no evidence of record to show that the FSM executed a DD Form 1883 for spouse or dependent children.

The record of marriage submitted by the applicant shows that she and the FSM were married on 11 March 1988.  There is no record on how or when his marriage to his previous spouse was terminated.  The FSM reached age 60 on 5 September 1998.  The certificate of death provided by the applicant shows that the FSM died on 15 May 2001.  The applicant is listed as his wife.

Information provided by the AR-PERSCOM indicates that there are no records that the FSM ever requested an application for retired pay or made an election for participation in RCSBP.  There is also no record that the applicant made a claim for SBP benefits and was denied her claim.

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 were 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, and was later remarried, the member could not elect RCSBP coverage for the new spouse except during an announced open season enrollment.

Public Law 101-189, and 101-510, established an Open Season to be conducted from 1 April 1992 to 31 March 1993.  Public Law 105-261, established an Open Season to be conducted from 1 March 1999 to 29 February 2000.

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.  Neither the applicant nor the available records show that the FSM ever applied for participation in the SBP for either the former or current spouse.  The FSM received his 20-Year Letter and the RCSBP Summary.  If he had wanted to enroll in the RCSBP, he would have contacted AR-PERSCOM to submit a DD Form 1883.  There is no evidence to show that he did so.

2.  There is no evidence of record that the FSM applied for SBP coverage for the applicant during the available open seasons.

3.  The applicant’s rights were not jeopardized.  At the time, neither spousal notification nor spousal concurrence with his non-election was required.

4.  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.

5.  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

___sp___  ___to___  __ar____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058547	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.