MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2000                   
	DOCKET NUMBER:   AR1999034211

	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. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Stueve		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 that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage,  option C.

APPLICANT STATES:  That the FSM never received his 20-year letter (notification of eligibility to receive retired pay at age 60).  Also, she never received a certificate of appreciation.

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

The FSM was born on 11 June 1943.  He enlisted in the Army National Guard  on 9 March 1966.  He was appointed a Reserve commissioned officer in the Army National Guard on 15 June 1968.  He and the applicant married on             19 September 1970.  He transferred to the U. S. Army Reserve on 2 April 1974.

The Army Reserve Personnel Command (AR-PERSCOM) sent the FSM his    20-year letter and SBP packet on 27 August 1998.  He apparently did not respond within the required time frame. 

On 2 March 1999, AR-PERSCOM informed the FSM that he completed the maximum service he could serve in an active status as of 11 July 1996.  That letter was sent to the same address to which his 20-year letter was sent.  At that time he requested transfer to the Retired Reserve and that his spouse, the applicant, receive a certificate of appreciation.  He was transferred to the Retired Reserve effective 25 June 1999.

On 4 September 1999, the FSM died of pancreatic cancer.

Public Law 95-397, the Reserve Component SBP (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.

Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

On 30 March 2000, AR-PERSCOM informed the Board that they make every effort to notify spouses when a member does not elect to participate in the RCSBP but are not always able to meet the requirement due to high volume and low automation support.  

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 that the FSM’s 20-year letter was sent to him in August 1998, to the same address at which he received his maximum years of service notice.  However, there is no evidence to show that he returned the RCSBP packet within the required 90 days.  In the absence of such evidence, the Board concludes that the FSM did receive his 20-year letter and it was his intent not to enroll in the RCSBP at that time.

2.  Although there was a requirement for the applicant to be notified that the FSM did not enroll in the RCSBP and there is no evidence to show that she was notified; the Board concludes this is not a material error.  Only spousal notification was required; not spousal concurrence, and so the lack of notification would not have affected the FSM’s enrollment (or non-enrollment) choice.

3.  Unfortunately, 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.

NOTE:  The Army Review Boards Agency, Support Division, will be directed to prepare a certificate of appreciation for the applicant.

BOARD VOTE:

__rgh___  __bje___  __jps___  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034211	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.