MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 January 2003
         DOCKET NUMBER: AR2002077692

         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:

Ms. Kathleen A. Newman		Chairperson
Ms. Gail J. Wire		Member
Mr. Patrick H. McGarthy, 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)

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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 served his country for over 24 years and it is unjust that she is being denied his retirement benefits. One of the biggest reasons he continued in the Army Reserve was for the retirement benefits. He had a son from his first marriage. After their marriage in 1986, she and the FSM adopted a natural sibling group of three children. The youngest was age 14 when the FSM died. The FSM was a devoted father, grandfather, and husband. It was of the utmost importance to him to provide for his family.

In going through the FSM's files, and he kept everything he had ever received from the Army National Guard (ARNG) and the U. S. Army Reserve (USAR), she located his 20-year letter and the packet of information that had come with it. One of the items in that packet was supposed to be a postal card which he was to have completed and returned with the forms. The card would then be returned by the Army after the forms were received. There is no postal card in his file. She believes, knowing how important the retirement benefits were to the FSM in providing for his family, that he did complete the forms and mailed them to the Army along with the postal card. Something may have happened after they were mailed, as the returned postal card is not in his file either. She cannot believe that the FSM did not complete and return the forms.

Because the Army told her there were no retirement benefits and her household income was cut drastically after the FSM died, she had to sell their home and move into a much smaller home, staying in the same neighborhood so she could continue to assist his elderly blind father and elderly aunts as well. She was under treatment for depression before the FSM died and the depression increased after his death. She is going through a daily struggle.

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

He was born on 14 December 1949. He enlisted in the ARNG in January 1970 and was separated in June 1976. He enlisted in the USAR in June 1981. The marriage certificate is not available but he and the applicant apparently married in 1986.

The FSM's notification of eligibility to receive retired pay at age 60 (his 20-year letter) is not available. According to a 4 April 2002 letter from the U. S. Army Reserve Personnel Command to the applicant's Representative in Congress, the FSM was sent his 20-year letter and packet (as the applicant acknowledges). According to the FSM's Chronological Statement of Retirement Points, he should have attained 20 qualifying years for retirement around 1996.

The FSM was promoted to Master Sergeant, E-8 on 1 July 1996.

On 9 July 1996, the FSM completed a Servicemen's Group Life Insurance Election and Certificate, SGLV Form 8286. On that form he indicated that he wanted no insurance. He reviewed the form on 7 July 1999 and made no changes.

The FSM died on 19 August 2000 at age 50 from coagulopathy (a bleeding disorder) due to bacterial endocarditis (an infection of the heart's inner lining or heart valves) due to mitral valve disease (from which he had suffered for several years). He was still in the Active Reserve at the time of his death.

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 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). If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay (again, costs for option C being the more expensive). 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.

Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

Section 12738(a) of Title 10, U. S. Code states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

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 Board does not doubt the applicant's contention that one of the biggest reasons the FSM continued in the USAR was for the retirement benefits. However, he had received his 20-year letter and, by law, his retirement benefits upon reaching age 60 could not be withheld.

2. The question appears to be what were the FSM's intentions regarding how to provide for his family.

3. The evidence of record shows that the FSM declined to elect any Servicemen's Group Life Insurance coverage (up to $200,000) as late as July 1999.

4. It appears to be reasonable to believe that the FSM, as a senior noncommissioned officer, would have retained his copy of the Survivor Benefit Plan Election Certificate, DD Form 1883, had he completed it at the time he received his 20-year letter. The applicant states that he kept everything he ever received from the ARNG or the USAR. A copy, however, is not available. The lack of an election certificate, indicating the FSM failed to elect to participate in the RCSBP, appears to be consistent with his failure to elect group life insurance.

5. 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

__KAN__ __GJW _ __PHM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077692
SUFFIX
RECON
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.	137.02
2.
3.
4.
5.
6.