MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 January 1999
         DOCKET NUMBER: AC97-10119

         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:

Mr. Thomas N. Kuhn		Chairperson
Mr. Walter T. Morrison		Member
Ms. Margaret V. Thompson		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)

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APPLICANT REQUESTS: That the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) within 90 days of his retirement.

APPLICANT STATES: She was denied SBP benefits because the FSM’s election was not made within 90 days of his receiving his notification of eligibility to receive retired pay at age 60 (20-year letter).

COUNSEL CONTENDS: That the FSM’s records at the Army Reserve Personnel Center (ARPERCEN)/Army Reserve Personnel Command (AR-PERSCOM) were and continue to be fouled up. As one example, he was mailed correspondence three months and again one year after his death, to an incorrect address. The FSM’s 20-year letter packet was incomplete. It did not contain the DD Form 1883, so he had no opportunity to complete it within the 90 day window. The packet was also sent to an incorrect address, but apparently it did end up in the FSM’s hands. He also notes that in their publications the Army was still advising Reserve Component members that an election for SBP could be made at the time of retirement.

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

He was born on 29 April 1945. He initially served in the Regular Army from 1 February 1966 to 1 May 1969. He had a break in service and then enlisted in the U. S. Army Reserve on 16 March 1975.

On 27 October 1992, the FSM was sent his 20-year letter/packet, apparently to an incorrect address. Paragraph three of the letter states, in highlighted, capitalized and underlined form, that “By law, you have only 90 calendar days from the date you receive this letter to submit your Survivor Benefit Plan election certificate (DD Form 1883)….should you die before age 60, there will be no benefits for your survivors.” It also states ”…and blank DD Form 1883 are enclosed.”

On 31 January 1996, the FSM was assigned to the Retired Reserves, as a Sergeant Major E-9, due to his unit being reorganized or inactivated.

The FSM’s unit sent a DD Form 1883 to him, with instructions to complete it, sign it and forward it as soon as possible.

On 31 August 1996, the FSM died of lung cancer.

The Army Reserve Magazine was one of the enclosures in the FSM’s 20-year packet. One of the articles noted “Reservists generally are given only two opportunities to elect SBP – at the time of retirement and upon reaching age 60.”

Army Regulation 140-10 covers policy and procedures for assigning and transferring U. S. Army Reserve soldiers. Chapter 6 lists eight categories of soldiers eligible to request transfer to the Retired Reserve. Such categories include those entitled to receive retired pay from the Armed Forces because of prior military service; those who have completed a total of 20 years of active or inactive service in the Armed Forces; and those who have reached the age of 37 and completed a minimum of 8 years of qualifying Federal service. That Chapter also prescribes the criteria for transfer from the Retired Reserve to the Ready Reserve. One set of criteria is that the soldier not be receiving retired pay.

Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP. It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

Public Law 95-397, the Reserve Component SBP (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.

Section 1448, title 10, U. S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.
Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services. The opinion recommended that the applicant’s request be disapproved. It noted that a 20-year packet was sent to the FSM. He had 90 days to make an RCSBP election. Should 90 days pass with no reply from the member, a follow-up notification letter is sent to the member’s spouse confirming that no RCSBP annuity will be payable should the member die before age 60. The fact that he attempted to enroll in the RCSBP in January 1996 has no bearing on this decision because he was barred by law from enrolling at that time.

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. This Board does not doubt that the FSM’s 20-year packet was sent to an incorrect address or that it may have been incomplete. However, the applicant’s supporting affidavit and counsel both verify that the FSM kept “good” records. He had received the 20-year letter. As a senior non-commissioned officer, he presumably read paragraph three and understood exactly what documents should have been enclosed. If he had wanted to enroll in the RCSBP, he would have contacted ARPERCEN at that time and requested a replacement DD Form 1883. There is no record that he did so.
3.       The applicant’s rights were not jeopardized. When participation in the RCSBP is declined (either explicitly or implicitly), only her notification is required, not her concurrence.
4. While there is no precise definition of “reserve retirement,” the regulations make it clear that transfer to the Retired Reserve does not mean the end of a soldier’s career. A soldier’s “retirement” becomes effective when he is eligible to draw retired pay at age 60.
5. The law, the governing regulation, and the FSM’s 20-year letter are very explicit on when a Reserve component member may elect to participate in the RCSBP/SBP – within 90 days of receiving his/her 20-year letter or when he/she applies for retired pay. The Army Reserve Magazine is subject to misunderstanding (it should more appropriately read “at the time of notification of eligibility to receive retired pay and upon reaching age 60.”). However, it is not a governing authority. The FSM’s unit should have checked the information in this magazine with the applicable official regulations before informing him he could elect participation in the RCSBP at the time he was transferred to the Retired Reserve.
6. The circumstances of the applicant are unfortunate; however, this Board believes that the FSM was fully informed at the time he received his 20-year letter that once he declined RCSBP participation his next opportunity to participate would be when he applied for retired pay at age 60.

7. 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

TNK_____ WTM_____ MVT_____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-10119
SUFFIX
RECON
DATE BOARDED	19990113
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	137.00
2.
3.
4.
5.
6.