RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 January 2005
      DOCKET NUMBER:   AR20040000391


      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. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that she be determined to be eligible to receive
the Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states that her deceased spouse, a former service member
(FSM), forged her signature on the DD Form 1883 (Survivor Benefit Plan
Election Certificate).  The FSM's unit personnel officer never counseled
her about SBP coverage for herself or their daughter.  Defense Finance and
Accounting Service (DFAS) instructions are that if the member has a spouse
and elects less than the maximum spouse coverage or child only coverage,
the member must obtain his spouse's written concurrence to validate the
election.  If spousal concurrence is not provided, any election for less
than full spouse overage will be invalidated and automatic coverage will be
established.

3.  The applicant provides the FSM's DD Form 1883; a copy of her social
security card, her driver license (two copies), and a void check; the FSM's
DD Form 214; their marriage license; a certificate of live birth for their
daughter L___; the FSM's death certificate; an undated letter to the U. S.
Army Reserve Personnel Command (AR-PERSCOM) requesting the RCSBP annuity;
AR-PERSCOM's      12 March 2003 response to her request; her application
for the annuity; and the FSM's notification of eligibility for retired pay
at age 60 (his 20-year letter).

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 15 September 1941.  He was transferred to the U. S.
Army Reserve on 3 May 1968 after being released from active duty.  He and
the applicant married on 19 February 1975.

2.  The FSM's 20-year letter is dated 11 January 1992.  On 8 June 1992, he
completed a DD Form 1883.  He checked that he desired to participate in the
RCSBP for child only coverage, full base amount.  No option was indicated.
He  listed five dependent children on the DD Form 1883 – daughter L___ born
on    15 January 1976 and sons J___ born on 13 January 1976, Y___ born on
29 April 1983, D___ born on 15 April 1983, and R___ born on 8 May 1991.
The sons have a different last name from the FSM and may have been natural
children.  None of the sons are listed on his DD Form 93 (Record of
Emergency Data) dated 1 August 1989.

3.  The applicant's "signature" appears on the reverse of the DD Form 1883.
  The signature is different from her signature as it appears on her DD
Form
149 (Application for Correction of Military Record under the Provisions of
Title 10, U. S. Code, Section 1552).

4.  The FSM died on 26 April 1999.  On 29 December 2004, DFAS informed the
Board analyst that no one is currently receiving the SBP annuity.

5.  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 have made the election within 90 days of receiving the
notification of eligibility to receive retired pay at age 60.  If death
occurs before age 60, the RCSBP costs for options B and C are deducted from
the annuity.

6.  Public Law 95-397 also provided that a married person who elects to
provide an RCSBP may not, without the concurrence of the person's spouse,
elect to provide an annuity for the person's spouse at less than the
maximum coverage or to provide an annuity for a dependent child but not for
the person's spouse.

DISCUSSION AND CONCLUSIONS:

1.  The FSM completed a DD Form 1883 in June 1992 (presumably within
90 days of receiving his 20-year letter) and elected to participate in the
RCSBP for child only coverage.  While the applicant's "signature" appears
on the reverse of the form, that signature is significantly different from
her signature as it appears on her DD Form 149.

2.  The Board accepts the applicant's contention that the FSM, or someone,
forged her signature on the DD Form 1883.  Since it thus appears the
applicant did not give her consent to the FSM's child only coverage RCSBP
election, by law the FSM's RCSBP election defaulted to spouse coverage.

3.  The FSM did not indicate on the DD Form 1883 which option he desired.
It would be equitable to show that he elected to participate in the RCSBP
for child only coverage, full base amount, option C but that the applicant,
his spouse, did not give her consent to his election.
BOARD VOTE:

__fne___  __rtd___  __ym____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  showing that the FSM elected to participate in the RCSBP for child
only coverage, full base amount, option C but that the applicant, his
spouse, did not give her consent to his election; and

     b.  that the applicant be paid the RCSBP annuity retroactive to the
date of the FSM's death in accordance with the law.




            ___Fred N. Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000391                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050106                                |
|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.                      |                                        |


-----------------------
[pic]