Author: WoodsHN

ABCMR Memorandum of                                                               AC97-08920
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 December 1998                   
	DOCKET NUMBER:   AC97-08920

	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. Loren G. Harrell | | Director
| Mrs. Nancy Amos | | Analyst

  The following members, a quorum, were present:

| Ms. June Hajjar | | Chairperson
| Mr. Fred N. Eichorn | | Member
| Mr. Thomas B. Redfern, III | | 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, the right to change his Reserve Component Survivor Benefit Plan (RCSBP) election from “decline” to “spouse and children.”

APPLICANT STATES:  When he received his 20-year letter by mail, he was not counseled regarding the SBP nor did he seek counsel.  He did not understand that he had to select an option within 90 days of receiving the letter.

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

He was born on 17 September 1955.  He enlisted in the Army National Guard on 25 November 1973.  

On 31 January 1994, he was sent his Notification of Eligibility for Retired Pay at Age 60 letter (20-year letter) and retirement packet.  Paragraph 2 of that letter states “contact the Survivor Benefit Plan counselor … for assistance in completing DD Form 1883…”  That paragraph also states, in underlined sentences, "should you...fail to return DD Form 1883...within 90 days of receipt and die before reaching age 60, your survivors will not receive benefits…”

The applicant was promoted to First Sergeant, E-8 on 15 July 1994.

On 30 November 1995, the applicant was transferred to the Retired Reserve.

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 60^th 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.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services.  The opinion recommended disapproval of the applicant’s request.  It noted that he was provided proper notification that clearly stated he had 90 days from the date of receipt to complete and return the necessary forms to enroll in the RCSBP.  It outlined the consequences of not completing the form in that time period.  Further, it instructed him to contact the SBP counselor at his unit for assistance, if needed.  He will next be afforded an opportunity to enroll his spouse/children at age 60 in conjunction with applying for retired pay.

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.  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 the aforementioned requirement.

2.  The evidence of record shows that the applicant received his 20-year letter/retirement packet.  The letter clearly stated he had 90 days to complete and return the necessary forms to enroll in the RCSBP and what the consequences of not doing so within that time period would be.  It clearly instructed him to contact his unit SBP counselor for assistance.  As a senior non-commissioned officer, it was his responsibility to ask for assistance if he did not understand any of these instructions.

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

JH______  FNE_____  TBR_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID | AC97-08920
SUFFIX |
RECON |
DATE BOARDED | 19981209
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | (DENY)
REVIEW AUTHORITY |
ISSUES         1. | 137.00
2. |
3. |
4. |
5. |
6. |