MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 June 2002
	DOCKET NUMBER:   AR2002069443

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Harry B. Oberg		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:  Reconsideration of her request for entitlement to Survivor Benefit Plan (SBP) benefits.

APPLICANT STATES:  That she was promised the pension of her deceased spouse, a former service member (FSM).  She needs it to help her pay her weekly and monthly bills.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 23 October 2001.

Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

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 was eligible for retired pay at age 60, which he attained on               5 September 1998.  However, the law requires that a member entitled to retired pay apply for retired pay.  While it would be unusual, there is no evidence to show that it was not the FSM’s intent not to apply for his retired pay.  It has happened that a member decided he did not need his retired pay and so made a deliberate decision not to apply for it.  

2.  There is no evidence of record to show the FSM had enrolled in the Reserve Component SBP (RCSBP) and, since he did not apply for retired pay, he would not have been eligible to enroll in the standard SBP.  It does not appear 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 married the FSM seven years after he received his notification of eligibility for retired pay (his 20-year letter) and after he was discharged from the Army National Guard.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__FNE__  __RWA__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069443	
SUFFIX		
RECON		
DATE BOARDED	2002/06/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.