MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 January 2002                   
	DOCKET NUMBER:   AR2001064333

	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:

	Mr. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		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) for spouse coverage.

APPLICANT STATES:  That the FSM was not aware that he needed to complete the SBP election until he reached age 60.  She never waived any claim to RCSBP benefits.  

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

He was born on 28 March 1953.  He was appointed a commissioned officer in the U. S. Army on 12 June 1975.  He married the applicant on 27 August 1977. He was promoted to Major on 1 August 1987.  

Around 1993, the FSM’s unit was inactivated.  Assignment to another unit was not available and, on 4 December 1993, he applied for early qualification for retired pay and transfer to the Retired Reserve.  His application was approved and by orders dated 25 July 1994, which showed his address as 1426 ____ ____, ___, OK, he was assigned to the Retired Reserve effective 31 August 1994.

The FSM’s notification of eligibility for retired pay at age 60 (Selected Reserve 15-year letter) is dated 14 November 1994 and is addressed to him at 1426 ____ ____, ___, OK.  The letter informs him that he had 90 calendar days to submit an enclosed Survivor Benefit Plan Election Certificate, DD Form 1883.  The 15-year letter was sent by certified mail to the same address.  The FSM apparently did not sign for the letter and it was returned to the U. S. Army Reserve Personnel Center unopened.  This is also the address indicated on the applicant’s DD Form 149.

The FSM died on 24 August 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.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been made after 1 January 2001.

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 15-year letter contained full guidance on the requirement to enroll in the RCSBP within 90 days of his receipt of the letter.  The evidence of record shows that his 15-year letter was sent by certified mail to the address listed as his current address (the same address listed on the applicant’s DD Form 149).  The evidence of record shows that the letter was not signed for and was returned to the U. S. Army Reserve Personnel Center unopened.  

2.  The FSM’s failure to accept his 15-year letter and subsequent failure to make an RCSBP election resulted in the automatic deferral of his election opportunity to when he attained age 60 when he would have been eligible to enroll in the standard SBP.  At the time spousal concurrence was not required for this automatic deferral.  Unfortunately, the FSM died prior to reaching age 60.

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

__gdp___  __wtm___  __rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064333	
SUFFIX		
RECON		
DATE BOARDED	20020124	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.