MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002075552

	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. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 the FSM had 30 years in the Army Reserve.  He paid particular attention to anything to do with the Army.  She feels sure that he returned the letter of election (i.e., Survivor Benefit Plan Election Certificate, DD Form 1883).  It is possible the Army never received it.  She has a 15-year old daughter still at home.  They were counting on the annuity for support.  

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

He was born on 11 June 1950.  After having had prior service, he enlisted in the U. S. Army Reserve on 11 August 1982.  He was appointed a command sergeant major on 1 January 1993 and was the command sergeant major of a medical unit at the time of his transfer to the Retired Reserve and had previously served in a Personnel Service Company and with the 99th Army Reserve Command.  

The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 15 September 1995.  By letters dated 2 October 1996 addressed to the FSM and to the applicant, the U. S. Army Reserve Personnel Center informed the FSM and the applicant that the FSM failed to return the DD Form 1883 within 90 days of his receiving his 20-year letter.  In the letter addressed to the applicant, she was informed that his survivors therefore would not receive an annuity if his death occurred prior to age 60.  The letters were addressed to the same address noted on several documents in the FSM's records to include his Record of Emergency Data, DD Form 1993 (last reviewed on 13 October 1995); his Statement of Retirement Points dated 18 June 1996; and his orders, dated  13 November 1997, transferring him to the Retired Reserve.

The FSM died on 15 May 2002 at age 51.

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.
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.

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 evidence of record shows that the FSM failed to return the DD Form 1883 within 90 days of receiving his 20-year letter and that both the FSM and the applicant were notified of the consequences of that failure in October 1996.  There is no evidence to show the FSM contested that letter.  As a command sergeant major, the FSM would have been well versed in Reserve Component personnel administration.  Had he intended to enroll in the RCSBP, he would have faced no insurmountable administrative barriers.  There is no evidence that he intended or attempted to enroll.  He may have believed that he was in good health and would survive until age 60 when he could have enrolled in the standard SBP.  Unfortunately, he died before reaching 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

__FNE __  __ BJE  _  __WDB __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002075552	
SUFFIX		
RECON		
DATE BOARDED	2002/09/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.