RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 October 2004
      DOCKET NUMBER:  AR20040001445


      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 J. Wagner             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Marla J. Troup                |     |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, 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).

2.  The applicant states, in an attachment to an unknown document, that she
watched the FSM and an Army friend fill in the SBP worksheet.  Although she
personally did not see him send the response, she knows he did as he always
followed through on what he began.  She received acknowledgement that the
SBP card of confirmation was received on 9 August 1979, showing his
intention to participate.  They sat and discussed which benefit to choose
and which would benefit them more at a later time in their lives.  She
knows the FSM sent in the completed SBP form as he always wanted to know
they would be financially covered.

3.  The applicant provides the DD Form 1883 (Survivor Benefit Plan Election
Certificate); the SBP worksheet; a DD Form 1300 (Report of Casualty);
copies of the FSM's military service records; letters from her Member of
Congress to the Department of Veterans Affairs; a Chronological Record of
Military Service; the FSM's notification of eligibility for retired pay at
age 60 (his 20-year letter); a letter from the Reserve Components Personnel
and Administration Center (RCPAC) dated November 1978; and a letter from
RCPAC dated 15 May 1985.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 December 1984, the date of the FSM's death.  The
application submitted in this case is dated 10 December 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The FSM was born on 5 November 1927.  After having had prior enlisted
service, he was commissioned in the U. S. Army Reserve on 19 August 1952.
He and the applicant married on 1 May 1954.  His 20-year letter is dated
         8 February 1972.  He was transferred to the Retired Reserve 21
September 1972 as a lieutenant colonel.
4.  By letter dated November 1978, RCPAC informed the FSM he was eligible
to enroll in the RCSBP.  He was advised to immediately execute a Statement
of Intent pending publication of the appropriate forms and detailed
administrative guidance.  He was advised to file that Statement of Intent
with his important personal papers until further guidance was provided.
The letter is annotated with a check mark next to the option C election.

5.  The applicant provided an SBP worksheet that apparently shows the FSM
calculated his SBP costs based on option C and a reduced ($300) base
amount. She also provided a DD Form 1883.  This form indicates spouse and
children coverage (youngest child born on 18 July 1968), option C was
elected.  Items 9a and 9b, to indicate whether coverage was based on full
or a reduced amount, are not completed.  The form is not signed, witnessed,
or dated on the front side of the form, which states, in part, "*To protect
the legal sufficiency of DD Form 1883, the witness must be a disinterested
individual and not the spouse of the retiree or other beneficiary."  The
FSM's name and the applicant's name are printed on the reverse side of the
form.

6.  The FSM died on 14 December 1984.

7.  By letter dated 15 May 1985, RCPAC informed the applicant that the FSM
was mailed the SBP material and returned the SBP confirmation card on
      9 August 1979.  However, no record had been found that he ever
returned the completed DD Form 1883.

8.  Public Law 92-425, enacted 21 September 1972, 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.

9.  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.  If death does occur before age 60, the RCSBP costs for options B and C
are deducted from the annuity.  An Open Season was established from 1
October 1978 through 30 September 1979 and later extended to 31 March 1980.

DISCUSSION AND CONCLUSIONS:

1.  The FSM became eligible to enroll in the RCSBP during the interim
period between the date the RCSBP was established and before final
administrative guidance was published.  It appears he had initially signed
a Statement of Intent indicating his desire to enroll in the RCSBP.  The
applicant provides an SBP worksheet indicating the FSM's calculated the
costs of enrolling in the RCSBP for a reduced ($300) base amount.

2.  However, the DD Form 1883 provided by the applicant is completed
incorrectly and incompletely.  The DD Form 1883 does not indicate whether
the FSM desired SBP based on either a full or a reduced portion of his
retired pay.  The DD Form 1883 does not bear the FSM's signature in any
section.  As a senior commissioned officer, the FSM should have been fully
aware that signatures, to include the signature of a disinterested witness,
were required to protect the legal sufficiency of the form.  Regrettably,
neither the SBP worksheet nor the DD Form 1883 is sufficient evidence to
show the FSM intended to follow through on his initial Statement of Intent
to enroll in the RCSBP.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 December 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   13 December 1987.  However, the applicant did not
file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __lf____  __mjt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _  Raymond J. Wagner__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001445                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041028                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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