MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 April 2002                   
	DOCKET NUMBER:   AR2002067212

	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. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry, Jr		Member	
	Mr. Thomas E. O'Shaughnessy, 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 spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That she and her children are still devastated by the sudden, tragic loss of the FSM.  She did not work in order to stay home and take care of their four children, three of whom she still supports and takes care of.  She enjoyed being a stay-at-home mom, which the FSM wanted, but his death has been a financial burden.  He died so young.  She sincerely believes it was the FSM’s oversight not to enroll in the RCSBP.  He had always provided for his family and took great pride in taking care of them.  She provides his death certificate as supporting evidence.

EVIDENCE OF RECORD:  The FSM military records show:

He was born on 1 September 1944.  After having had 9 years of active duty as a commissioned officer, he entered the U. S. Army Reserve around 1986 as a major in the Medical Corps.  He was promoted to lieutenant colonel on 30 June 1991.  

The FSM’s Record of Emergency Data, DD Form 93, shows the FSM had four children (dates of birth 25 April 1974, 14 July 1976, 25 March 1978, and            21 February 1985).

The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 17 September 1997.  In paragraph 4, in bold type, the notification informed him that he had only 90 calendar days from the date he received the letter to submit his Survivor Benefit Plan Election Certificate, DD Form 1883.  If he did not do so, he could not apply for the SBP until he reached age 60 and applied for retired pay.  

By letters dated 16 December 1998, both the FSM and the applicant were informed that since the FSM failed to enroll in the RCSBP within the 90-day window he could not elect to participate in the SBP until he reached age 60.  Both letters were sent to the applicant’s current address.

The death certificate shows the FSM died on 13 February 2000 at age 55 of hypertensive and atherosclerotic coronary vascular disease which he had had for several 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.

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’s 20-year letter clearly stated he had 90 days in which to enroll in the RCSBP.  He failed to return the DD Form 1883 within that 90-day window.  Both he and the applicant were apprised of that situation in December 1998 and there is no evidence that either attempted to rectify that situation at the time.  Unfortunately, the FSM then died two years later, five years before he turned age 60.

2.  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

__aao___  __hof___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067212	
SUFFIX		
RECON		
DATE BOARDED	20020430	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.