MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 August 2002
	DOCKET NUMBER:   AR2002074121

	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. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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) in a timely manner.

APPLICANT STATES:  That at the time the FSM received the form he was not properly counseled about the purpose of the form or the importance of timely completion of the form.  If he had realized the Survivor Benefit Plan Election Certificate, DD Form 1883, controlled her receiving an annuity in the event of his death, he would have completed the form immediately.  He wanted her to have an annuity upon the event of his death.  

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

He was born on 12 January 1946.  He had prior active service from December 1965 – October 1967.  He and the applicant married on 25 November 1969.  He enlisted in the Air National Guard around December 1975 and was discharged around August 1979.  He enlisted in the Army National Guard in June 1982.

The FSM’s unit was deactivated or reorganized around September 1996.  On      7 August 1997, he was notified that he had been assigned excess for a period of one year.  He needed to elect either discharge or assignment to the Retired Reserve (as he had more than 15 but less than 20 years of qualifying service for retirement) or to remain excess for another two years while attempts were made to place him in a valid vacancy.  He elected transfer to the Retired Reserve with early application for retired pay.  

The FSM’s notification of eligibility for retired pay with 15 years of service (his  15-year letter) is dated 1 October 1997.  The Office of the Adjutant General, Florida National Guard forwarded his 15-year letter to him, through the Commander, Headquarters and Headquarters Company, 11th Aviation (apparently the unit that was deactivated), by letter also dated 1 October 1997.  Enclosed with this letter were a DD Form 1883, an SBP Fact Sheet, and several other SBP documents.  The letter informed him that it was “imperative that the election of options be made in a timely manner and returned to … NLT 60 days after the date of receipt of the DD Form 1883.  Failure to meet this suspense date can result in loss of benefits to the surviving spouse…”  A point of contact at the Office of the Adjutant General and a telephone extension were given.  He apparently did not return the DD Form 1883.

The FSM was discharged from the Army National Guard and assigned to the Retired Reserve effective 17 December 1997.  He died on 3 December 2001 at age 55 of heart failure.

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.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  Extensive publicity was given in Army Echoes.

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 appears from the applicant’s statement that the FSM did receive the DD Form 1883.  Since it appears he received the DD Form 1883, it also appears he received the 1 October 1997 cover letter from the Office of the Adjutant General, Florida National Guard instructing him that it was imperative he complete and return the form within 60 days (90 days is the statutory suspense) or else his surviving spouse might lose benefits.  The FSM’s unit may have deactivated; however, that letter had a point of contact on it that he could have gone to for more information if he desired more details on the RCSBP.  

2.  The FSM also could have enrolled in the RCSBP during the March           1999 – February 2000 Open Season.  He was a retiree at that time and should have been receiving Army Echoes, which contained extensive information on the SBP.  There is no evidence to show that the FSM attempted to enroll in the RCSBP during this period and no evidence to show that it was his intention to enroll in the RCSBP and not wait until he reached age 60 to enroll in the standard SBP.  Unfortunately, he did not survive until age 60.  

3.  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__  __ TSK  _  _ _LEM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002074121	
SUFFIX		
RECON		
DATE BOARDED	2002/08/13	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.