MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 July 2003                  
	DOCKET NUMBER:   AR2003084080

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas D. Howard		Member	
	Mr. Thomas Lanyi		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:  In effect, 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 she should be entitled to the RCSBP annuity due to the FSM's service and his rank of Master Sergeant.

COUNSEL CONTENDS:  That the Board should give careful and compassionate consideration to the applicant.

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

He was born on 11 November 1947.  After having had prior service, he enlisted in the U. S. Army Reserve on 18 January 1975.

The FSM and the applicant married on 14 September 1987.

The applicant's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 25 August 1995.  It informed the FSM that he had 90 calendar days from the date he received the letter to submit his SBP election certificate.  Records at the U. S. Army Reserve Personnel Command (AR-PERSCOM) show that they mailed the 20-year letter to the FSM by certified mail on 1 March 1996 and that he did not return the DD Form 1883 (Survivor Benefit Plan Election Certificate) enrolling in the RCSBP.

The FSM died on 24 May 2002.

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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  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.  

At the time, 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.

In the processing of this case, an advisory opinion was obtained from Retirements and Annuities, AR-PERSCOM.  That office noted that the FSM did not respond to the certified mailing of his 20-year letter and RCSBP enrollment form.  

A copy of the advisory opinion was provided to the applicant for response or rebuttal.  She did not respond within the given time frame.

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.  Records at AR-PERSCOM show that the FSM did not return the DD Form 1883 enrolling in the RCSBP.  The applicant did not provide evidence, such as the FSM's copy of the DD Form 1883, showing that it was the FSM's intention to enroll in the RCSBP.  Unfortunately, he then died prior to reaching age 60, at which time he could have enrolled in the standard SBP.

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

__jns___  __tdh___  __tl____      DENY APPLICATION

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

INDEX

CASE ID	AR2003084080	
SUFFIX		
RECON		
DATE BOARDED	20030722	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.