MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 September 2002
	DOCKET NUMBER:   AR2002077015

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. Ronald E. Blakely		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 she was never informed of this program prior to the FSM's retirement from the Army National Guard nor before his death in July 1993.  Lack of retirement counseling hindered their knowledge of this program; therefore, she was never given the opportunity to elect an option.  Supporting evidence is as listed on the 12 July 2002 letter from the Ohio Army National Guard accompanying her application.

COUNSEL CONTENDS:  Counsel makes no additional comment.  

EVIDENCE OF RECORD:  The FSM's military records are not available.  Information contained herein was obtained from alternate sources.  

The FSM was born on 27 August 1941.  He and the applicant married on            6 March 1967.  

The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 16 April 1980.  The letter says a Survivor Benefit Plan Summary was attached.  He apparently did not complete a Survivor Benefit Plan Election Certificate, DD Form 1883, at that time.  He apparently was discharged from the Army National Guard in 1989 in the rank of Chief Warrant Officer Three.

The FSM died on 6 July 1993 at age 51 of an acute myocardial infarction as a consequence of chronic obstructive pulmonary disease from which he had suffered for 10 years.

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 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 through 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity of this Open Season was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  (Army Echoes was mailed to gray area retirees (those eligible for retired pay but not   yet age 60) beginning sometime in the 1980s.)  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April  1992 through 31 March 1993.

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 were 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 FSM had an opportunity to enroll in the RCSBP when he received his   20-year letter.  It appears that he did not take that opportunity.  While the RCSBP is meant to provide protection to a member's family, at the time the decision to enroll or not was the member's, not the spouse's.  The law which required spousal concurrence with a decision to delay making an SBP election until reaching age 60 was not enacted until 30 October 2000.

2.  The FSM had a second opportunity to enroll in the RCSBP during the       1981 through 1982 Open Season.  There is no evidence to show that he attempted to enroll during that period.  It appears he was still active in the Army National Guard at this time and should have been aware of the Open Season.

3.  The FSM had a third opportunity to enroll in the RCSBP during the 1992 through 1993 Open Season.  By this time, Army Echoes was being mailed to gray area retirees.  It contained extensive publicity on this Open Season.  Although this Open Season required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity, had the FSM attempted to enroll during this period it would have been evidence of his intent to do so.  However, there is no evidence that he attempted to enroll at that time.  

4.  Regrettably, 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

__JHL__  __MMD__  ___REB__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077015	
SUFFIX		
RECON		
DATE BOARDED	2002/09/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.