MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 June 2000                   
	DOCKET NUMBER:   AR1999029985

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		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).

APPLICANT STATES:  In effect, that the FSM did not receive his notification of eligibility for retired pay at age 60 until after his death and after passage of the law that allowed early retirement.

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

He was born on 21 August 1940.  After having had prior service in the Regular Army and the U. S. Army Reserve, he enlisted in the Army National Guard on   12 March 1977.

On 6 December 1991, the FSM was discharged from the Army National Guard for medical reasons.  His NGB Form 22 shows he had 20 years, 7 months and 25 days of total service for pay but his statement of retirement points history shows he had under 17 years of qualifying service for retired pay.

On 31 March 1992, the FSM died.

Public Law 103-337, dated 5 October 1994, established early reserve retirement eligibility for soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended through 30 September 2001).  Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  Title 10, U. S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on               23 October 1992 and ending on 1 October 1999 to soldiers who attained           15 years of retirement eligibility as of 1 October 1991.

The Illinois National Guard has stated that when they became aware of the eligibility for retired benefits law and the 1 October 1991 effective date they conducted a search of all soldiers separated by reason of medical disqualification from 1 October 1991 onwards.  The FSM was identified as one of those soldiers and in November 1998 he was sent a notification of eligibility for retired pay at age 60 with 15 years of service.  His family was not located until May 1999.

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 Board concludes the change in the Early Reserve Retirement Eligibility for Disabled Members law does not apply in this case.  The FSM died prior to enactment of the law authorizing early retirement.  In addition, although he completed his 15 years of qualifying service under this law by 1 October 1991, the law established the period of retirement as beginning on 23 October 1992, also after his death.

2.  While the circumstances surrounding this case are unfortunate, the Board finds that no error or injustice has occurred.   

3.  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

__vbc___  __jea___  __ewl___  DENY APPLICATION

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

INDEX

CASE ID	AR1999029985	
SUFFIX		
RECON		
DATE BOARDED	20000620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.