MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 November 2001
         DOCKET NUMBER: AR2001058734

         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
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. John T. Meixell		Member
Mr. Lester Echols		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 he be allowed to enroll in the Reserve Component Survivor Benefit Plan (RCSBP) as of the date of his transfer to the Retired Reserve.

APPLICANT STATES: That at the time of his transfer to the Retired Reserve he did not receive his Notification of Eligibility for Retired Pay at Age 60 (20-year Letter) with the concurrent option to enroll in RCSBP. He never received his 20-Year Letter from the National Guard Bureau (NGB) and just recently obtained a copy from the Army National Guard (ARNG). If he had had the opportunity to enroll he would have elected to cover his qualifying dependents at the time, which included his children from a previous marriage and his current spouse and their child. He has been recently diagnosed with terminal cancer. He provides copies of his RCSBP election forms dated the same as his application to this Board.

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

He served in the ARNG from 1 July 1959 to 29 March 1960. He enlisted in the Regular Army and served on active duty from 30 March 1960 to 6 April 1968. He served again in the ARNG from 7 April 1968 to 3 March 1980, when he was transferred in the pay grade of E-7 to the Retired Reserve.

The applicant provides a copy of an ARNG memorandum, dated 7 April 1981. The memorandum states that the applicant retired from the ARNG and has a verified 20-years of service. The memorandum makes no mention of his eligibility for retired pay at age 60.

The applicant also provides a copy of his 20-Year Letter from the NGB. The letter is dated 29 August 1985, and was addressed to the applicant through his ARNG unit. The letter lists as an enclosure the RCSBP Summary.

The RCSBP election form provided by the applicant shows that he is requesting full, immediate coverage for his eligible spouse and child. His date of birth is shown as 5 April 1942. The applicant lists his date of marriage to his current spouse as 14 November 1990, and the birth of their child as 20 March 1991. He provides no information of the date of his divorce from his former spouse. There is no evidence of record that the applicant ever filed a request for RCSBP for his former eligible dependents or his current eligible dependents prior to this date.

Information provided by the Army Reserve Personnel Command revealed that the applicant has filed for retired pay at age 60, effective 5 April 2002, and has elected RCSBP participation.




Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. It declared a 12-month Open Season for those members who retired prior to enactment of the law.

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 were available: (A) elect to decline enrollment and choose at age 60 whether to start RCSBP 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. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). An Open Season was established from 1 October 1978 to 30 September 1979; later extended to 31 March 1980.

Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 to 30 September 1982. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 to 30 September 1992. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 to 31 March 1993.

Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 to 29 February 2000.

Title 10, U. S. Code, section 1448 (a), provides rules for participation in the RCSBP. It provides for participation of members who were not married at the time of their original eligibility, but who later marry, to participate in the plan by making an election within 1 year after the date of marriage.





Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve Component soldiers. It explains that retired pay is granted soldiers and former Reserve Component 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.

Information concerning availability of the RCSBP was widely disseminated through various military and quasi-military publications and unit briefings in the Reserve Components. Additionally, all members of the Retired Reserve receive numerous mailings annually of “Army Echos” which is used to disseminate SBP and other benefit information to the retired community.

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. Neither the applicant nor the available records show that he ever applied for participation in the RCSBP for either his former eligible dependents or his current spouse and child. The applicant, a senior noncommissioned officer, knew or should have known, that upon reaching 20 years of qualifying service for retirement or upon his transfer to the Retired Reserve, he would have to make an election for RCSBP. If he had wanted to enroll in the RCSBP he would have submitted a DD Form 1883. There is no evidence to show that he did so.

2. There is no evidence of record that the applicant applied for RCSBP coverage during the three additional open seasons available to him or upon his marriage to his current spouse in November 1990.

3. The applicant is provided one final opportunity to enroll his eligible dependents in the RCSBP when his application for retired pay at age 60 becomes effective on 5 April 2002.

4. 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.




5. 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

__ao___ __jm___ __le____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058734
SUFFIX
RECON
DATE BOARDED	20011127
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	137.01
2.
3.
4.
5.
6.