MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2001                   
	DOCKET NUMBER:   AR2001060887

	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. Luther L. Santiful		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Mr. Charles Gainor		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 he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

APPLICANT STATES:  That the FSM elected full RCSBP coverage to begin upon his passing.  He and the applicant were to be married but put off the wedding until a later date.  He and the applicant were dating at the time.  He believed that since he elected coverage and they later married that she was covered.  He did not believe that a new paper had to be completed upon their marriage.  The FSM split his insurance between his mother and herself because she was to get his pension and his mother would have money to live on, also.  She states that she provided the marriage certificate and insurance election as supporting evidence; however, only a letter from the Missouri National Guard was attached to the DD Form 149 (additional evidence later obtained from the Missouri National Guard).

EVIDENCE OF RECORD:  The FSM's military records from the Army National Guard are not available.  The information contained herein was obtained from alternate sources.

The FSM was born on 14 January 1948.  He had prior service in the Regular Army from 1967 – 1969.  He enlisted in the Army National Guard on an unknown date.  He received his notification of eligibility for retired pay at age 60 (his       20-year letter) on 14 April 1996.

On 19 April 1996, the FSM completed a Survivor Benefit Plan Election Certificate, DD Form 1883.  He checked that he was not married and that he had no dependent children.  He did not check any of the category blocks indicating what category of RCSBP coverage he wanted; however, he checked that he wanted to provide an annuity based on the full base amount, option C.

The FSM and the applicant married on 28 June 1998.  The FSM died on 2 May 2001 of a brain stem stroke.

Public Law 92-425, 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 after death to surviving dependents.  Elections are made by category (spouse, spouse and child, former spouse, former spouse and child, child only, or insurable interest).  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a person with an insurable interest in the member.

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. 

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

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.  There is insufficient evidence to show that the FSM intended the applicant to be his SBP beneficiary.  

2.  Although the DD Form 1883 indicated that the FSM may have wanted some type of coverage, he did not indicate exactly what type of coverage.  Section II, item 8d indicated that if he had no spouse or child he could have elected insurable interest coverage and entered the applicant’s name and other data in section IV.  He did not do so nor did he even erroneously check spouse coverage.

3.  Since the FSM did not make an RCSBP election by category in 1996, he could have done so within one year of his marriage to the applicant in June 1998. He failed to do so.  

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:

________  ________  __jrs___  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cg____  __lls___  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2001060887	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.