RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 September 2005
      DOCKET NUMBER:  AR20040010133


      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. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, reconsideration of her request 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 effect, she did not have all of the facts of
what occurred in her husband's case when she originally filed a corrected
DD Form 1883 (Survivor Benefit Plan Election Form).  She states there was a
"missing document" Army officials believed never existed.  She claims after
their marriage, the FSM went to Camp Roberts, California and completed all
of the necessary paperwork, including a DD Form 1883, acknowledging her as
his beneficiary in both his military and federal civilian service records.
The applicant further indicates both the original civilian documents and
military documents were placed in separate envelopes and mailed to the
appropriate agencies in Sacramento, California for processing.  She affirms
that both of the envelopes were received for processing because she is
currently receiving benefits from her husband's federal civilian service
policy and she knows that the Servicemember's Group Life Insurance (SGLI)
documents were received.

3.  The applicant further states her niece confirms the FSM showed her
where he maintained all of his important paperwork and that her niece
actually saw his completed Army forms, which included a life insurance
form, the DD Form 1883 and his 20 year letter.  She claims that following
the FSM's death, military officials were in her home and asked where her
husband maintained his important papers in order to prepare an obituary,
and prior to taking a sedative, she told these officials to check the
dining room desk drawer.  She states that the next day, while she was
sedated, her sister and brother-in-law arrived at her home and found that
the military officials had gone through the FSM's paperwork without her
knowledge.  The applicant claims it was at this time that her husband's
copy of the DD Form 1883 was misplaced and or lost.

4.  The applicant provides the following documents, in support of her
request:  Self-Authored Letter to Counsel, dated 18 October 2004; Counsel’s
Statement, dated 27 October 2004; Eight Sworn Statements; Two Divorce
Decrees and One Interlocutory Judgment Filed Before Issue of the Third
Divorce Decree; Servicemembers Group Life Insurance (SGLI) Election and
Certificate, dated
11 August 1998; Family Coverage Election, Designation of Beneficiary
(Standard Form 2823), dated 7 August 1998; and Thrift Savings Plan
Designation of Beneficiary (Form TSP-3), dated 7 August 1998.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant’s request
that the records of her deceased former spouse be corrected to show he
enrolled in RCSBP.

2.  Counsel states, in effect, the statement provided by the FSM's niece
clearly shows the FSM's intent for the applicant to receive RCSBP benefits,
as well as the fact that he completed a DD Form 1883 identifying the
applicant as beneficiary of his RCSBP annuity; and that these documents
were included with other important paperwork.  Counsel further claims the
statement provided by the applicant, to include all other statements
provided in support of her application, collectively indicate the FSM
completed a DD Form 1883 after his final marriage, which identified his
last wife as his RCSBP beneficiary, and that this form was included in one
of two envelopes forwarded to Sacramento, California for processing.  These
statements further confirm both envelopes were received by the responsible
office because the applicant received information regarding the contents
inside both of the envelopes, with the exception of any details regarding
the DD Form 1883.  Counsel further indicates that based on the sworn
statements provided with the application, it is clear the FSM completed and
returned a DD Form 1883 and elected RCSBP coverage; however, this election
document was misfiled or lost by the military.  Counsel concludes by
stating the FSM's copy of the DD Form 1883 turned up missing as a result of
the confusion surrounding his death.

3.  Counsel provides a Self-Authored Statement in support of the
application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003090355, on 16 December 2003.

2.  As outlined by the Board in its original decisional document, the FSM
failed to make an RCSBP election when he received his 20 year letter, and
there was insufficient evidence to show he made an election three years
later when he was married for a fourth time to the applicant.  The
applicant provided several other insurance forms listing her as
beneficiary; however, she was unable to provide a copy of the DD Form 1883.
 The divorce decrees stemming from the FSM's first three marriages were
also not available during the original deliberation of this case and the
Board could not determine if the FSM was required to provide former spouse
RCSBP coverage for any of his former spouses.  The Board concluded that
absent a DD Form 1883, there was insufficient evidence to support granting
the requested relief.

3.  The applicant now provides individual sworn statements from her niece,
one civilian official from Camp Roberts, three military officials from Camp
Roberts, her sister, and a former spouse, which all support her claim in
whole, or in part, based on the version of events she presents.  She also
provides a copy of two prior divorce decrees and one interlocutory judgment
filed before the third divorce decree was issued showing the FSM was not
required to provide former spouse RCSBP coverage to his three former
spouses.

4.  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.

5.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be granted RCSBP coverage
because the FSM made an RCSBP election after they were married and the
original election form, along with the FSM's personal copy, was misplaced
or lost has been carefully considered.

2.  The veracity of the supporting statements provided by the applicant are
not in question.  Given that the other documents submitted to military
officials were received and processed, it is likely the individuals
providing statements are assuming a DD Form 1883 was completed.  This
assumption is understandable because the FSM designated the applicant his
beneficiary for death benefits on all the other documents submitted and
processed.  However, absent a completed DD Form 1883 signed by the FSM,
there is an insufficient evidentiary basis to support amending the original
Board decision in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___REB _  __LF ___  ___LMD__  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 to amend the decision of
the ABCMR set forth in Docket Number AR2003090355, dated 16 December 2003.




            ____Ronald E. Blakely_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010133                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/09/27                              |
|TYPE OF DISCHARGE       |NA                                      |
|DATE OF DISCHARGE       |NA                                      |
|DISCHARGE AUTHORITY     |NA                                      |
|DISCHARGE REASON        |NA                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |134.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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