MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           20 November 2003        
		DOCKET NUMBER:  AR2003089631

	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:

	Ms. JoAnn Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		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 elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and children coverage.

APPLICANT STATES:  That when the FSM died in 1993 she had no idea she could have received any pay.  No one contacted her.  She was not aware she could apply for the benefit until a member of the FSM's former Army National Guard unit told her she was eligible for the annuity.  She could use the benefits to pay off all the medical bills the FSM had.  As supporting evidence, she provides the FSM's death certificate and an application for death benefits.  

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

He was born on 22 July 1934.  He enlisted in the Army National Guard in 1955.  He married the applicant, apparently in 1958, and they divorced on an unknown date.  

The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 22 August 1980.  He was not married at that time and elected children only RCSBP coverage.

The FSM remarried the applicant on an unknown date.  

By letter dated 13 April 1989, the State of Wisconsin, Department of Military Affairs informed the FSM that they had reviewed his files and noticed that at the time he elected into the RCSBP he covered his dependent children.  When he remarried, he had one year to include the applicant.  Since it appeared he failed to do so, he would be able to cover her when he applied for retired pay benefits at age 60.

The FSM apparently attempted to enroll in the RCSBP after receiving the 13 April 1989 letter.  His enrollment form was returned without action.

The FSM died on 12 May 1993 of lymphoma (which had its onset 7 years earlier) and leukemia secondary to lymphoma (which had its onset 2 years earlier).

By letter dated 24 May 1994, the applicant was informed (apparently by the U. S. Army Reserve Personnel Center (ARPERCEN)) that the FSM was unmarried at the time he enrolled in the RCSBP and elected children only coverage.  He had one year after they remarried to provide RCSBP coverage for her but he never changed his election within that one year.  There was an open enrollment period from 1 April 1992 through 31 March 1993 and an open enrollment period application was forwarded to the FSM on 30 November 1992.  However, he did not return the form.
On 10 October 2002, the applicant applied to the U. S. Army Reserve Personnel
Command (AR-PERSCOM, formerly ARPERCEN) for all death benefits.  On or about 25 November 2002, AR-PERSCOM certified her as eligible for benefits and informed her that the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) would contact her regarding the SBP.  DFAS-CL apparently never contacted her.

In the processing of this case, an advisory opinion was obtained from AR-PERSCOM.  AR-PERSCOM acknowledged that they had previously certified the applicant for the SBP and forwarded the claim package to DFAS-CL.  DFAS-CL denied the claim based on the fact the claim was not filed within six years.      AR-PERSCOM went on to state that a further review of the FSM's files, to include additional data obtained from the Wisconsin Army National Guard, revealed the applicant was not eligible for the SBP annuity.  They thereupon reversed their previous opinion and action based upon the discovery of previously unknown documents.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She stated that she would appreciate anything she feels she has coming due her.  She is living on a widow's pension and can hardly make the money reach.  She stated the FSM had been sick with cancer for 8 years.  His life was the National Guard.  

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.  

Public Law 101-189, enacted 29 November 1989, established a one-year Open Season to be conducted 1 October 1991 (but deferred to 1 April 1992) through 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

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 evidence of record shows the FSM was not married at the time he received his 20-year letter and so enrolled in the RCSBP for children only coverage.

2.  The FSM remarried the applicant sometime after he enrolled in the RCSBP.  By law, he had one year to provide SBP coverage for her but the evidence shows that he did not do so.  Evidence shows that he attempted to later add spouse coverage, but outside the statutory one-year window.  

3.  The FSM had an opportunity to enroll in the SBP during the 1 April 1992 through 31 March 1993 open enrollment period.  He may have been too ill to do so.  In any case, he died prior to the end of the 2-year survivability requirement.  Unfortunately, he died at age 58, prior to becoming eligible to enroll in the standard SBP at age 60.

4.  Although AR-PERSCOM initially certified the applicant as eligible for the SBP annuity, that certification was based on incomplete information.  

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

__jl____  __lds___  __rd____  DENY APPLICATION

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

INDEX

CASE ID	AR2003089631	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.