MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002077517

	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. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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).  She states that the FSM retired from the Army National Guard (ARNG) on 6 October 1986.  He was sent his notification of eligibility for retired pay (his 20-year letter) by letter dated             16 December 1986.  She recently found the letter with SBP Summary forms enclosed and marked with Post-Its for his signature still attached.  He had opened the letter and apparently set it aside, maybe not knowing what he was supposed to do with it since he was already retired.  They married in 1968 and she feels she is entitled to the RCSBP.

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

He was born on 21 March 1945.  He enlisted in the ARNG on 6 October 1965.  He and the applicant married on 27 May 1968.  He was promoted to Staff Sergeant, E-6 on 21 April 1981.  He was discharged from the ARNG on              6 October 1986 and transferred to the Retired Reserve. 

By letter dated 16 December 1986, the FSM was informed that he would find his 20-year letter attached as well as information pertaining to his SBP options.  He was told to please read everything carefully, then sign the letter of acknowledgement, fill out and sign the Survivor Benefit Plan Election Certificate (DD Form 1883), have his wife (the applicant) read and sign the letter addressed to her, and return those items to his unit in order for him to receive his SBP option.  A phone number was provided for the administrative specialist who signed this letter.  The FSM apparently did not complete any of these forms.

The FSM died on 10 May 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.  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 101-189, enacted 29 November 1989, established a one-year Open Season to be conducted 1 October 1991 (but deferred to 1 April 1992).  Extensive publicity of this Open Season was given in Army Echoes, the Army bulletin published and mailed to retirees (and to gray-area retirees since earlier in the 1980s) to keep them abreast of their rights and privileges and to inform them of developments in the Army.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000. Extensive publicity was given in Army Echoes.

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 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.  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.  The instructions provided to the FSM with his 20-year letter regarding the RCSBP could not have been much clearer.  It explained which documents he had to sign and return in order for him to be enrolled in the RCSBP.  If he needed to contact the administrative specialist for more information, a phone number was provided.  He had been separated from the ARNG for only two months; he could have contacted his old unit for information.  It appears the FSM made a deliberate decision not to return the RCSBP election form and, unlike the standard SBP, spousal consent for his effective declination to participate in the RCSBP was not required.

3.  The FSM had two subsequent opportunities, during the 1992 - 1993 and the 1999 - 2000 Open Seasons, to enroll in the RCSBP.  There is no evidence to show that he attempted to enroll at those times.  Unfortunately for the applicant, he died prior to reaching age 60, when he would have had another opportunity to enroll in the standard SBP.

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

__RJW__  __RWA__  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002077517	
SUFFIX		
RECON		
DATE BOARDED	2002/10/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.