MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 May 2002
	DOCKET NUMBER:   AR2002069998

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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 to correct the records of her deceased spouse, a former service member (FSM), to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That the expanded provisions of the RCSBP should be applied to her situation.

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 15 June 1994 (docket number AC93-09853).

Public Law 105-85, enacted 18 November 1997, provided an SBP annuity for surviving spouses of a Reservist who died between 21 September 1972 and       1 October 1978 and who at time of death would have been entitled to retired pay but was not yet age 60.  The surviving spouse must not have remarried or otherwise be entitled to SBP or Dependency and Indemnity Compensation (DIC).

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.  It is not clear what the applicant means when she mentions the “expanded provisions” of the RCSBP but most likely she is referring to Public Law 106-398, which requires a spouse’s concurrence before allowing a Reserve member to delay making an RCSBP election until age 60.  However, this law does not apply in this case for two reasons.  First, it is applicable only to cases where 20-year letters have been made after 1 January 2001.  Second and more importantly, the fact still remains that the FSM died before the RCSBP was even established.

2.  While empathetic with the applicant’s situation, it would not be appropriate to correct the FSM’s records at this time to reflect he elected to participate in a program for which he might have chosen any one of three options.  One of the options, A, would have left her in the same situation she is currently in.

3.  However, Congress has considered widows in the applicant’s situation by passing Public Law 105-85 on 18 November 1997.  She should read the attached article on “forgotten widows” and contact the nearest Retirement Services Officer to apply for this benefit.
4.  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.

5.  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

_RVO___  ___JPI__  __PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2002069998	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.