RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 November 2003
         DOCKET NUMBER: AR2003090860


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


1. The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to void the orders discharging him from the U. S. Army Reserve (USAR); be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to spouse coverage; and that she be awarded his Servicemen's Group Life Insurance (SGLI).

2. The applicant states that the FSM was erroneously discharged from the USAR in 1989. At that time he was already in the Retired Reserve. Also, the FSM was not aware of the fact that his SBP election needed changing after his divorce and his subsequent marriage to her on 10 May 1990. She was his wife for 12 years. His only child, listed in the original SBP election, is a grown adult in good health. The FSM had many discussions with her over the past years (he suffered from cancer for 8 years) about how the SBP would help sustain her financially after his death as she is only 53 years old.

3. The applicant provides a letter to her from the U. S. Army Reserve Personnel Command dated 3 April 2003; the FSM's death certificate; the DD Form 1883 (Survivor Benefit Plan Election Certificate) with counseling letter; the FSM's notification of eligibility for retired pay at age 60 (his 20-year letter); a North Carolina Army National Guard (NCARNG) letter dated 14 November 1999; the FSM's Retired Reserve certificate dated 12 August 1988; the FSM's Honorable Discharge certificate dated 12 December 1989; assignment orders dated 17 January 1988; orders discharging him from the ARNG and transferring him to the Retired Reserve; a North Carolina National Guard memorandum dated 12 February 1988; a North Carolina National Guard memorandum dated 21 April 1988; a U. S. Army Reserve Personnel Center (ARPERCEN) memorandum dated 30 October 1989; and orders dated 9 January 1990 discharging the FSM from the USAR.

CONSIDERATION OF EVIDENCE:

1. The FSM was born on 14 August 1944. After having had prior service, he entered the ARNG as a commissioned officer in the Judge Advocate General's Corps on 27 October 1972.

2. The Veterans Administration Form 29-8286 (Servicemen's Group Life Insurance Election) on file in the FSM's records is dated 2 October 1983. It lists his beneficiaries as "by law." He reviewed this form on 4 August 1984.

3. Effective 13 August 1988, the FSM was discharged from the ARNG and transferred to the Retired Reserve.

4. The FSM's 20-year letter is dated 19 August 1988. On 22 November 1988, he completed a DD Form 1883. He indicated that he was married. He elected to provide children only coverage. His spouse signed the DD Form 1883. He signed a counseling statement that he received information on the SBP elections available to him and the effects of those elections.

5. The FSM divorced on an unknown date.

6. The FSM may have been erroneously accessed into the Individual Ready Reserve (IRR) instead of the Retired Reserve (RR). By ARPERCEN memorandum dated 30 October 1989, he was informed that he had been nonselected for promotion. Since he was eligible for transfer to the Retired Reserve, he had the option to request transfer to the Retired Reserve.

7. The FSM apparently did not respond to the 30 October 1989 memorandum. ARPERCEN Orders D-01-003798 dated 9 January 1990 discharged him from the USAR effective 12 December 1989.

8. The FSM married the applicant apparently on 10 May 1990. The marriage certificate is not available; however, the death certificate shows he married the applicant when he was age 45 (which he attained on 14 August 1989).

9. The FSM died on 15 December 2002. The death certificate shows he had prostate cancer for the past 10 years.

10. 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. The election must be made within 90 days of receiving the notification of eligibility to receive retired pay at age 60. An election, once made, is irrevocable except under certain circumstances provided for by law.

11. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

12. The SGLI and Veterans Group Life Insurance (VGLI) programs are Department of Veterans Affairs (VA) programs. Only certain portions of the SGLI program, such as preparing the VA Form 29-8286 and collecting premiums, are administered by the military services. SGLI is in effect for 120 days after an individual separates from active duty or the Reserves. Individuals entitled to SGLI coverage can convert to VGLI by submitting the premium within 120 days after separating. After 121 days, the individual may be granted VGLI provided an initial premium and evidence of insurability are submitted within one year after termination of the individual's SGLI coverage. VGLI provides renewable five-year term coverage. VGLI is available to (a) individuals being released from active duty or the Ready Reserves; (b) Ready Reservists who have part-time coverage, and who while performing active duty or inactive duty for training for a period of less than 31 days, suffer a disability which renders them uninsurable at standard premium rates; and (c) members of the Individual Ready Reserve and Inactive National Guard.

13. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that, to be eligible for consideration for promotion to the next higher grade, an ARNG or USAR officer must be in an active status.

14. Title 10, U. S. Code, section 101(d)(4) defines "active status" as the status of a member of a reserve component who is not in the inactive ARNG or Inactive Air National Guard, on an inactive status list, or in the Retired Reserve.

DISCUSSION AND CONCLUSIONS :

1. The evidence of record shows the FSM was married at the time he enrolled in the RCSBP in November 1988. He acknowledged that he received information on the SBP elections available to him and was counseled about the effects of those elections. Because he was married at the time but elected not to provide for spouse coverage, he was in effect prohibited by law from ever providing for spouse coverage.

2. The evidence of record shows the FSM had "by law" SGLI coverage at least as of August 1984. Normally, that would mean the applicant, as his widow, was the automatic beneficiary of the SGLI. However, the FSM's SGLI coverage was terminated 120 days after he was released from the ARNG and was not in effect at the time of his death.

3. The evidence of record shows the FSM was discharged from the ARNG on 13 August 1988 and was transferred to the Retired Reserve. As such, he was not eligible for promotion and so the ARPERCEN memorandum dated 30 October 1989, which informed him that he had been nonselected for promotion, was in error. His discharge, which was based on his failure to respond to the 30 October 1989 memorandum, was therefore in error. While it appears the erroneous discharge did not work to the detriment of either the FSM or the applicant, it would be appropriate to revoke ARPERCEN Orders D-01-003798 dated 9 January 1990 discharging the FSM from the USAR effective 12 December 1989 as the applicant requests.

BOARD VOTE:

__ rvo ___ __ lem ___ __ ym ____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION


1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by revoking ARPERCEN Orders D-01-003798 dated 9 January 1990 discharging the FSM from the USAR.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to showing the individual concerned changed his RCSBP coverage to spouse coverage and awarding the applicant the SGLI.




                  __Raymond V. O'Connor_
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090860
SUFFIX
RECON
DATE BOARDED	20031125
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	137.04
2.
3.
4.
5.
6.