RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            30 August 2005
      DOCKET NUMBER:   AR20040009391


      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             |
|     |Ms. Lisa O. Guion                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 elected to
participate in the Reserve Component Survivor Benefit Plan (RCSBP) for
spouse coverage.

2.  The applicant states, in effect, her late husband erred when he elected
to decline RCSBP coverage.   She states the FSM failed to realized his
obsessive compulsive disorder to maintain his leadership role in the Army
National Guard (ARNG) and as the Superintendent of the Tonawanda Highway
Department would lead to his downfall.  She indicates the FSM struggled
immensely with his need to be recognized as a strong and perfect leader,
which resulted in his committing suicide on 4 August 2003.  She states the
FSM faithfully served in the ARNG for 24 years and they both looked forward
to receiving his retired pay at age 60.

3.  The applicant provides the following documents in support of her
request:  Self-Authored Statement; Third-Party Statement, dated 19 October
2004; Certificate of Death; Physician's Statement, dated 25 August 2003;
Survivor Benefit Plan Election Certificate (DD Form 1883); and Department
of the Army (DA), National Guard Bureau (NGB) Notification of Eligibility
for Retired Pay at Age 60 Letter, dated 31 December 1985.

CONSIDERATION OF EVIDENCE:

1. The FSM's military records show he was born on 11 January 1945.  On
2 August 1965, he enlisted in and entered the ARNG.  He was promoted to
sergeant first class/E-7 (SFC/E-7) on 16 November 1973.

2.  The FSM and the applicant were married on 21 September 1968.

3.  The applicant’s record includes a Notification of Eligibility for
Retired Pay at Age 60 letter (20 year letter), dated 31 December 1985.  The
letter included a Survivor Benefit Plan summary as an enclosure.

4.  On 12 February 1986, the FSM completed a DD Form 1883 and selected
"None" for the type of RCSBP coverage desired.  He also elected Option A
(Defer), indicating he declined to make a RCSBP election at the time;
however, he would remain eligible to make an election at age 60.  The DD
Form 1883 includes the following statement just above the space provided
for the retiree and his spouse's signature:  "NOTE:  If retiree does not
elect option B or C at this time, and should die before age 60, the
survivors will not receive benefits under Public Law 95-397."  Both the FSM
and the applicant authenticated this document with their signatures on 12
February 1986.

5.  On 1 August 1989, after completing 24 years of qualifying military
service for Reserve retirement at age 60, the applicant was honorably
retired from the ARNG and transferred to the United States Army Reserve
(USAR) Control Group (Retired Reserve).

6.  On 5 August 2003, the FSM died at the age of 58.

7.  The third-party supporting statement provided by an Erie County New
York Legislator supports the applicant’s request based on the version of
events the applicant presented.  This official indicates the FSM’s decision
to decline RCSBP coverage was made while he was under extreme emotional and
mental duress.  He also made the comment, "I can't believe a man who cared
so much for his family would make this detrimental decision in his ‘right’
mind.

8.  The physician's statement provided by the applicant indicates the FSM
had nervous and mental disorders, which were diagnosed as "major
depression" on 17 June 2003.

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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM had an obsessive compulsive
disorder causing him to make an error when he declined RCSBP coverage was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record confirms the FSM, upon completing 20 years of
qualifying military service for Reserve retirement at Age 60 while a member
of the ARNG, completed a DD Form 1883 on 12 February 1986.  In this RCSBP
Election Certificate, the FSM elected to decline immediate coverage and
chose to defer his RCSBP coverage election until he reached age 60 (Option
A).  There is no medical evidence of record to show the FSM suffered from
any physical/mental condition at the time he completed the document making
his RCSBP elections.  Subsequent to completing the DD Form 1883, the FSM
continued to serve in the ARNG for more than three additional years until
he was honorably discharged on 1 August 1989.

3.  The evidence further shows that when the FSM declined RCSBP coverage,
both he and his spouse acknowledged that if he were to die prior to
reaching age 60, survivors would receive no benefits under the prescribed
law.  This acknowledgement is evidenced by the signatures of the FSM and
applicant on the DD Form 1883 completed on 12 February 1986.  Regrettably,
the FSM died
17 years after his election, two years before reaching age 60, and while
this is indeed unfortunate, it does not provide a basis to support granting
the requested relief at this time.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PMS    ___YM __  ___LGH    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





            ____Paul M. Smith_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040009391                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2008/08/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1989/08/01                              |
|DISCHARGE AUTHORITY     |NGR 600-200                             |
|DISCHARGE REASON        |Retired                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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