PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           12 March 2002                   
	DOCKET NUMBER:   AR2001062251

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Gail J. Wire		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of receiving his notification of eligibility for retired pay at age 60 (his 20-year letter).

3.  The applicant states that he never received his 20-year letter, the 90-day letters concerning his ineligibility to participate in the RCSBP, or the RCSBP packet.  He would like to apply for the RCSBP to protect his spouse and children in case he dies before age 60.  When he contacted the U. S. Army Reserve Personnel Command (AR-PERSCOM) concerning his 20-year letter, he was informed that AR-PERSCOM had sent his 20-year letter on two separate occasions.  He wants to stress that he never received it those two times.

4.  The applicant’s military records show that he was born on 15 December 1954. He served on active duty from January 1978 – July 1989 when he was transferred to the U. S. Army Reserve.  His 20-year letter is dated 28 January 1998.  

5.  By letter dated 27 August 1999, AR-PERSCOM informed the applicant that since he did not respond to the RCSBP materials he received on 29 April 1998 within 90 days, he was excluded from participating in the SBP until attaining age 60 and applying for retired pay.  By letter dated the same date, AR-PERSCOM informed the applicant’s spouse that he did not enroll in the RCSBP.

6.  Records at AR-PERSCOM indicate the applicant may have made his first inquiry about his 20-year letter on 6 December 1999.  It appears AR-PERSCOM sent him his 20-year letter for the third time on 17 April 2001.

7.  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.

8.  In the processing of this case, an advisory opinion was obtained from the Transition and Separations Branch, AR-PERSCOM.  That office opined that the applicant must wait for an Open Season or enrollment at age 60 as part of his application for retired pay.  His failure to receive the letter and associated RCSBP enrollment documents was not a result of the Army’s failure to provide him the documents.
9.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.  

CONCLUSIONS:

1.  The Board acknowledges that the Army did not fail to provide the applicant with his 20-year letter and RCSBP packet in 1998.  However, the law states that the 90-day period begins the date the member receives the 20-year letter.  

2.  It appears the applicant first inquired into the whereabouts of his 20-year letter within a fairly reasonable period of time after he would have expected to receive it.  For whatever reason he did not receive the 20-year letter the first two times it was sent to him, it appears he finally received it on or about 17 April 2001.  It would be equitable to show he enrolled in the RSCBP on 1 May 2001, within 90 days of receiving his 20-year letter, for spouse and children coverage, full base amount, option C.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the applicant received his 20-year letter on 17 April 2001 and that he enrolled in the RSCBP on 1 May 2001, within 90 days of receiving it, for spouse and children coverage, full base amount, option C.

BOARD VOTE:  

__inw___  __rjw___  __gjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001062251	
SUFFIX		
RECON		
DATE BOARDED	20020312	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.