MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 January 2002                   
	DOCKET NUMBER:   AR2001064315

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, 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 enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That by error and/or oversight, the personnel responsible for briefing the FSM failed in their responsibility and he did not complete the Survivor Benefit Plan Election Certificate, DD Form 1883.  She and the FSM were married for 38 years.  She was part of the Family Guard until his death in July 2001.  Moreover, he died with the conviction that she would be covered by the RCSBP. This is the only source of income she will have until she is eligible for social security in 4 years.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He was born on 20 July 1942.  He and the applicant married on 28 December 1963.  He enlisted in the Army National Guard on 2 February 1969.  He was promoted to Master Sergeant, E-8 on 15 August 1983.  

The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 30 October 1984.  The letter indicates that a Survivor Benefit Plan Summary was attached as an enclosure.  He apparently failed to return an RCSBP election form.

The FSM was transferred to the U. S. Army Reserve Control Group (Reinforcement) on 8 July 1990 and to the Retired Reserve on 15 May 1993.  

The FSM died on 23 July 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.  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.

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.  The FSM was a senior noncommissioned officer.  His 20-year letter clearly stated that a Survivor Benefit Plan Summary was attached.  If he desired to enroll in the RCSBP and provide RSCBP coverage to the applicant, it was his responsibility to seek out the information he needed to provide that coverage.  Like a civilian insurance plan, he would have had to complete a form (a DD Form 1883) designating a beneficiary at what level of coverage (maximum or reduced) and at what time (immediate coverage or delayed coverage).  There is no evidence to show that he did so.  The Board finds it difficult to conceive that a senior noncommissioned officer could have believed he provided such coverage to the applicant when he had not completed any such document.  

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

__inw___  __hof___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064315	
SUFFIX		
RECON		
DATE BOARDED	20020115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.