MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2002069041

	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. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 option C.

APPLICANT STATES:  That she cannot locate the Survivor Benefit Plan Election Certificate, DD Form 1883, but she does not believe she ever agreed to option A.

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

He was born on 5 December 1948.  After having had prior active service, he enlisted in the Army National Guard around September 1982.  He and the applicant married on 24 December 1990.  His notification of eligibility for retired pay at age 60 (his 20-year letter) from the California Army National Guard is undated but it appears it was prepared in December 1991.  He died on 15 July 2001.

On 13 November 2001, the U. S. Army Reserve Personnel Command (AR-PERSCOM) informed the applicant that their records showed the FSM elected option A of the RCSBP.

On 30 April 2002, AR-PERSCOM informed the Board that their records are coded as showing the FSM elected option A.  This code is also used when the member fails to return the DD Form 1883 within 90 days.  AR-PERSCOM does not have a copy of a DD Form 1883 completed by the FSM.

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.
If the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that election.

Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been made after 1 January 2001.

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.  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.

2.  Since there is no DD Form 1883 available, it appears that the FSM may have failed to return the form within 90 days of receiving it.  AR-PERSCOM’s system would have been coded “A” whether the FSM consciously elected option A (deferral of an election until reaching age 60) or whether he defaulted to option A by failing to complete and return the DD Form 1883 within 90 days.  

3.  The applicant’s rights were not jeopardized.  At the time, neither spousal notification (since the FSM did not make an irrevocable election to provide no or less-than-maximum coverage for her) nor spousal concurrence with his failure to make an election was required.

4.  It does not appear to the Board that failure to grant the applicant relief would be inequitable.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for only one year prior to his receiving his 20-year letter.

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

__mdm___  __le____  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069041	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.