MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2002069082

	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).

APPLICANT STATES:  That the FSM served on active duty for 12 years and then in the U. S. Army Reserve in an active status until his death.  At the time he received his 20-year letter, he was still a young man and had no plans to retire in the near future.  An active duty or Government civil service member makes a decision (regarding the SBP) when retirement is imminent, not years before their retirement date.  The law was changed in 2001 to automatically enroll a Reserve member in the RCSBP under option C, spouse only.

EVIDENCE OF RECORD:  The FSM military records show:

He was born on 19 August 1952.  He entered active duty as a commissioned officer on 24 January 1975.  He was released from active duty on 1 January 1987 and transferred to the U. S. Army Reserve.  He was promoted to Lieutenant Colonel on 1 January 1994.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 28 July 1995.  He failed to return the Survivor Benefit Plan Election Certificate, DD Form 1883, within 90 days of receiving the letter.

The FSM died on 28 December 2001 of lung cancer.  

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.  At the time, neither spousal notification (since the FSM did not make an irrevocable election to provide no coverage or less-than-maximum coverage for her) nor spousal concurrence with his nonelection was required.  The Board notes the applicant’s argument that an active duty or Government civil service member makes an SBP decision when retirement is imminent, not years before their retirement date.  However, a Reserve member also has the opportunity to wait until retirement is imminent (and merely an additional opportunity to make an earlier decision), which it appears the FSM took.  

2.  The Board presumes that, as a senior commissioned officer, the FSM made a considered decision whether or not to enroll in the RCSBP at the time he received his 20-year letter.  Based upon circumstances at the time, and as the applicant noted the FSM was still a young man with no plans to retire in the near future, it may have appeared to have been a reasonable, cost-effective chance for him to take.  Unfortunately, circumstances changed in the intervening years and he died before he could attain age 60 and make a new decision to enroll or not.  

3.  Others in similar circumstances also suffer hardships because of a decision their Reserve member spouse made prior to attaining age 60.  To grant the applicant’s request because the law changed five years after the FSM received his 20-year letter would not be equitable.

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

__mdm___  __le____  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069082	
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.