MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 June 2002
	DOCKET NUMBER:   AR2001063617

	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. Roger W. Able		Member	
	Mr. Harry B. Oberg		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 changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to spouse and children coverage.

APPLICANT STATES:  That in the summer of 1993, she and the FSM went down to the command office to change forms, sign papers, and to get her an identification card.  The officer had all of their papers ready to sign and answered all of their questions.  He put all of the signed papers in a folder and said all was done.  The FSM followed every detail to bring her on board.

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

He was born on 6 November 1946.  He served on active duty from September 1966 – August 1968 and was transferred to the U. S. Army Reserve.  He enlisted in the Army National Guard on 2 October 1973.  His notification of eligibility for retired pay at age 60 (his 20-year letter) was prepared on 3 November 1992.  It appears he was a widower at that time.  He completed a Survivor Benefit Plan Election Certificate, DD Form 1883, on 6 December 1992 and elected to participate in the RCSBP for children only coverage, full base amount, option C.  

The FSM and the applicant married on 2 April 1993.  On 5 February 1995, he completed a Servicemen’s Group Life Insurance Election and Certificate, SGLV-8286 and designated his two children as principal beneficiaries for his insurance. He was transferred to the Retired Reserve on 1 October 1995.  He died on         7 September 2001.

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.  

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.  There is no evidence to show the FSM requested a change in his RCSBP election within one year of his marriage to the applicant.  He had completed a DD Form 1883 less than one year earlier and should have known, if he desired to provide the RCSBP for the applicant, what to specifically request when they went to obtain her identification card.  There is no evidence to show that it was his intent to provide RCSBP coverage for her.  

2.  Without substantial evidence to show that it was the FSM’s intent to provide the RCSBP for the applicant, it does not appear that it would be inequitable to deny the relief requested.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for only two years of his military career.  

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

__FNE__  __RWA__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063617	
SUFFIX		
RECON		
DATE BOARDED	2002/06/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.