MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 February 2002                   
	DOCKET NUMBER:   AR2001061094

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 his mother, the widow of a deceased former service member (FSM), be determined to be an eligible beneficiary of the FSM’s Survivor Benefit Plan (SBP) annuity.

APPLICANT STATES:  That the FSM, his stepfather, properly completed the Statement of Intent and sent it in.  His mother and the FSM were both assured that the SBP was in effect.

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

He was born on 2 January 1921.  After having had prior enlisted service, he was commissioned a second lieutenant in the U. S. Army Reserve on 17 October 1949.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 16 February 1968.

On 3 January 1979, the FSM signed a Statement of Intent election to enroll in the Reserve Component SBP (RCSBP) for option C, spouse coverage.

On 17 September 1980, the FSM completed a Data for Payment of Retired Army Personnel, DA Form 4240.  At this time he elected to decline participation in the SBP.  His spouse, the applicant’s mother, signed this form as a witness.  Records at the Defense Finance and Accounting Service (DFAS) show that the FSM never paid RCSBP or SBP premiums.

The FSM died on 12 May 2001. 

The applicant was informed that it appeared the FSM had never paid RCSBP or SBP premiums and requested he inform the Board if he (or the FSM’s widow) would be willing to pay back all due premiums.  He did not respond within the given time frame.

Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. 

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.  

Public Law 99-145, enacted 8 November 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 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.  The FSM became eligible to enroll in the RCSBP during the interim period between the date the RCSBP was established and before final administrative guidance, to include the appropriate forms, was published.  He signed a Statement of Intent indicating that he desired to enroll in the RCSBP for spouse coverage, option C.  It appears he may never have completed the appropriate form (a Survivor Benefit Plan Election Certificate, DD Form 1883) that was later created to enroll in the RCSBP.

2.  When the FSM had the opportunity 18 months later to enroll in the standard SBP upon his reaching age 60, he declined to enroll.  His spouse signed the DA Form 4240 as a witness.  While the FSM may have declined to enroll because he believed he had already enrolled in 1979, the fact remains that he never paid SBP premiums.  He would have seen from his annual Retiree Pay Account statements that no SBP premiums were being deducted from his pay.  He had two later opportunities, in 1992 – 1993 and 1999 – 2000, to signal his desire to enroll in the SBP.  There is no evidence to show that he attempted to enroll during either of these two Open Seasons.

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

__rvo___  __cla___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001061094	
SUFFIX		
RECON		
DATE BOARDED	20020228	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.