MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 January 2002                   
	DOCKET NUMBER:   AR2001062393

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, Jr.		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) for spouse coverage, option C.  She states that it was the FSM’s understanding that when he reached age 60 she would receive his benefits.  He completed his 20 years.  She knows nothing about the Survivor Benefit Plan Election Certificate, DD Form 1883.  He had moved several times and if he filled out this form she cannot locate it.  He died without leaving life insurance; the only income she has is his social security pension.  He always felt they would be compensated for his 20 years in service.

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

He was born on 29 February 1944.  After having had prior service in several different components, he entered the Army National Guard for the last time in 1982.  He was promoted to lieutenant colonel with a date of rank of 18 May 1990. His Servicemen’s Group Life Insurance Election and Certificate, SGLV 8286, dated 10 January 1993 shows that he was married to T___ at that time.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated       24 August 1994.  It states that a Survivor Benefit Plan Summary was attached as an enclosure.  It appears he did not complete and/or return the DD Form 1883.

The FSM and the applicant married on 31 August 1996.  The FSM died on        11 June 2001.  

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.

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or 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.  The evidence of record shows the FSM failed to elect RCSBP at the time he received his 20-year letter.  The Board cannot determine if he was still married to T___ at the time he received his 20-year letter.  If he was, his failure to provide for spouse coverage at that time precluded him from opting for coverage until he reached age 60.  

2.  If the FSM was not married at the time he received his 20-year letter, he had one year from the date of marriage to the applicant to enroll in the RCSBP for spouse coverage.  There is no evidence to show that he did so.  The FSM was a senior commissioned officer who should have been aware of what avenues (such as an installation retirement services officer) were available in case he wanted information on RCSBP coverage for his new spouse.  

3.  The FSM was a senior commissioned officer.  If he desired to enroll in the RCSBP and provide RSCBP coverage to his spouse (whether his first spouse or the applicant), it was his responsibility to seek out the information he needed to provide that coverage.  Like a civilian insurance plan, he would have had to complete a form (a DD Form 1883) designating a beneficiary at what level of coverage (maximum or reduced) and at what time (immediate coverage or delayed coverage).  There is no evidence to show that he did so.  The Board finds it difficult to conceive that a senior commissioned officer could have believed he provided such coverage when he had not completed any such document.

4.  Regrettably, 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

__inw___  __hof___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062393	
SUFFIX		
RECON		
DATE BOARDED	20020115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.