MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 November 2002
	DOCKET NUMBER:   AR2002076655

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Thomas B. Redfern, III		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:  That the records of her deceased fiancé, a former service member (FSM), be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) to child only coverage.

APPLICANT STATES:  That their daughter was born ten weeks premature in March 2002.  They were waiting for her birth certificate to arrive so he could show proof of birth but it did not arrive until after he died.  She provides the FSM's death certificate and their child's birth certificate as supporting evidence.

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

That he was born on 8 December 1942.  After having had prior service, he enlisted in the Army National Guard on 25 March 1983.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 14 June 2000.  At that time he was not married and he enrolled in the RCSBP for insurable interest coverage (an adult daughter), full base amount, option C.

The FSM's and the applicant's daughter was born on 22 March 2002.  The FSM died on 20 April 2002.  The birth certificate was issued on 26 April 2002.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

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.  If the member dies before reaching age 60, the premiums are deducted from the annuity.  

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.  

Title 10, U. S. Code, section 1448(b)(1) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in that person.  Such an election for a beneficiary who is not the former spouse of the person providing the annuity may be terminated.

In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities section, U. S. Army Reserve Personnel Command.  That office recommended approval of the applicant's request, noting that the law is clear -- the FSM made an election to cover his grown daughter as an insurable interest.  He could change that designation at any time.  

A copy of the advisory opinion was provided to the applicant for comment.  She concurred in the advisory opinion, stating that she and the FSM had been in a long and loving relationship. 

On 1 October 2002, the applicant was requested to obtain the FSM's adult daughter's concurrence with her request.  She did not respond within the time frame given.

On 6 November 2002, the Defense Finance and Accounting Service determined that a claim for the RCSBP annuity has not been submitted.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The Board is sympathetic with the applicant's desire to provide for the FSM's infant daughter.  However, given the facts of this case the lawful beneficiary of the FSM’s RCSBP is the FSM's adult daughter even though it appears she is not currently drawing the annuity.  Absent a statement from the FSM’s adult daughter asserting that she agrees to renounce payment of the RCSBP annuity in perpetuity in favor of the applicant's daughter and notwithstanding the advisory opinion, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

2.  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

__RVO__  __TBR  _  __DPH __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002076655	
SUFFIX		
RECON		
DATE BOARDED	2002/11/07	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.