MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            26 June 2003      
	DOCKET NUMBER:   AR2003082594

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Lawrence Foster		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:  In effect, that she did not have the chance to apply for the RCSBP.  The FSM did not give her the letter [informing her he had not enrolled].  She did not know about the RCSBP until recently.

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

He was born on 19 July 1950.  He served in the Regular Army from 1969 to 1972.  He and the applicant married in 1972.  After having had subsequent service in the U. S. Army Reserve, the Army National Guard, and the U. S. Navy Reserve, he enlisted in the U. S. Army Reserve on 1 June 1984.

The FSM's notification of eligibility to receive retired pay at age 60 (his 20-year letter) is dated 2 December 1997.  Paragraph 4 of the letter informed him that he had only 90 days from the date he received the letter to enroll in the RCSBP by returning the DD Form 1883.  Otherwise, he would not be entitled to the SBP until he applied for retired pay at age 60.  

Records at the U. S. Army Reserve Personnel Command (AR-PERSCOM) show that the FSM did not return the DD Form 1883 (Survivor Benefit Plan Election Certificate) within the required 90-day period.

By letter dated 13 October 1998, AR-PERSCOM informed the applicant that the FSM failed to return the DD Form 1883 and that he would have to wait until he reached age 60 to enroll in the standard SBP.

The FSM died on 19 June 2002.

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 death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  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.  At the time, if the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that election.

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 issued 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.  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.  Records at AR-PERSCOM show that the FSM did not return the DD Form 1883 enrolling in the RCSBP.  There is evidence of record to show the applicant was notified, in October 1998, of the FSM's failure to do so.  

3.  The applicant’s rights were not jeopardized even if she did not receive the October 1998 letter.  At the time, neither spousal notification (since the FSM did not make an irrevocable election to provide no coverage or less-than-maximum coverage for her) nor spousal concurrence with his nonelection was required.

4.  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

__wtm___  __le____  _fs     ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002082594	
SUFFIX		
RECON		
DATE BOARDED	20030626	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.