RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2005
      DOCKET NUMBER:  AR20040009591


      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             |
|     |Mr. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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.  As the widow of a former service member (FSM), the applicant requests
she be given benefits under the Reserve Component Survivor Benefit Plan
(RCSBP).

2.  The applicant states:

      a.  She was married to the FSM from 9 July 1965 to 2 July 1990, when
he died.

      b.  The FSM was a former Soldier in the South Carolina Army National
Guard (SCARNG) and he qualified for non-regular retirement at age 60.

      c.  The FSM was never afforded the opportunity to elect RCSBP
benefits.

3.  The applicant provides:

      a.  A letter from the SCARNG, dated 20 October 2004, stating the FSM
qualified for non-regular retirement on 22 August 1983.  He was honorably
discharged from the SCARNG and transferred to the US Army Reserve (USAR)
Retired Reserve on 20 April 1987.  He died on 2 July 1990 and neither his
"20-Year Letter" nor his Survivor Benefit Plan Election Certificate (DD
Form 1883) can be located.

      b.  A copy of DD Form 2656-7 (Verification for Survivor Annuity),
dated 7 October 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 July 1990.  The application submitted in this case is
dated 7 October 2004.

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 limitations 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's records show:

      a.  He was born on 21 August 1945.

      b.  He enlisted in the SCARNG on 23 August 1963; his ”retirement
year" ran from 23 August – 22 August.

      c.  He married the applicant on 9 July 1965.

      d.  He qualified for non-regular retired pay on 22 August 1983, when
he attained 20 qualifying years of service.

      e.  He was honorably discharged from the SCARNG and as a Reserve of
the Army on 20 April 1987 and transferred to the USAR Retired Reserve.  He
had earned an additional 3 years of creditable service for non-regular
retired pay purposes.

      f.  He died on 2 July 1990, leaving the applicant as his widow.

4.  The FSM's records contain no NG Form 23D (Notification of Eligibility
for Retirement Pay at Age 60), no "20-Year Letter," and no DD Form 1883
(SBP Election Certificate).  The Military Department of The State of South
Carolina, on 20 October 2004, confirmed that no record of the FSM's
retirement eligibility notification could be found with the South Carolina
Military Department or the US Army Human Resources Command – St. Louis,
Missouri.

5.  Sections 12731 through 12740 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.

6.  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 occurs before age 60, the RCSBP costs for options
B and C are deducted from the annuity.  A member must make the election
within 90 days of receiving the notification of eligibility to receive
retired pay at age 60.
7.  In the processing of this case, an advisory opinion was obtained from
the US Army Human Resources Command (HRC), St. Louis, Missouri which states
the FSM apparently was not given the opportunity to elect into the Survivor
Benefit Plan.  The opinion recommends approving the applicant's request.
The applicant was provided an opportunity to respond to the advisory
opinion, but did not do so.

DISCUSSION AND CONCLUSIONS:

1.  The FSM qualified for non-regular retired pay on 22 August 1983.  There
is no record of his election of RCSBP benefits.

2.  The SCARNG, in a letter dated 20 October 2004, confirms the FSM
qualified for non-regular retirement on 22 August 1983 and was honorably
discharged from the SCARNG and transferred to the US Army Reserve (USAR)
Retired Reserve on 20 April 1987.  Following a records search, the SCARNG
could not locate a copy of the FSM's "20-Year Letter" or his Survivor
Benefit Plan Election Certificate (DD Form 1883).  The SCARNG recommends
the applicant be afforded RCSBP benefits.

3.  There is evidence of government administrative error in this case.
When the FSM earned his non-regular retirement, he should have been issued
a 20-year letter by the SCARNG.  Along with the letter, he should have been
provided a
DD Form 1883 and been required to make a RCSBP election within 90 days of
receipt of his 20-year letter.  The fact that the SCARNG cannot find the 20-
year letter suggests that it and the DD Form 1883 were either never issued,
or that they were issued, completed and returned, and subsequently lost.

4.  In view of the foregoing, it would be in the interest of justice to
correct the FSM's records as recommended below.

BOARD VOTE:

__jev___  __cvm___  __lmb___  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 and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
FSM be corrected by:

      a.  Showing that he completed the DD Form 1883 in a timely manner and
that he elected Option C, Spouse Only; and

      b.  Paying to the applicant the appropriate RCSBP annuity from the
date of the applicant's death on 2 July 1990, less RCSBP costs because the
FSM's death occurred before age 60.



                                  James E. Vick
                            ______________________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009591                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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