RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 September 2004
      DOCKET NUMBER:   AR2004101436


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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, Reserve Component Survivor Benefit
Plan (RCSBP) benefits based on the service of her deceased husband, a
former service member (FSM).

2.  The applicant states, in effect, that the FSM was ignorant of the time
limits imposed on submitting an application for RCSBP benefits for her.
She further states it was never the intent of the FSM not to participate in
the RCSBP.  She claims to have discussed the situation with Department of
Defense (DOD) officials and was told she would have to apply to the Board.


3.  The applicant provides a copy of the FSM’s death certificate and a
marriage certificate in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows he served on active duty in the Army of the
United States from 10 September 1957 through 27 August 1959 and on 28
August 1959, he entered the United States Army Reserve (USAR).

2.  On 8 December 1981, the Army Reserve Personnel and Administration
Center (ARPERCEN) published a letter notifying the applicant of his
eligibility for retired pay at age 60 (Twenty-Year Letter) under the
provisions of chapter 67 of Title 10 of the United States Code upon
application.  The applicant’s date of birth was 26 April 1934.

3.  On 29 October 1993, the FSM completed a Data for Payment of Retired
Army Personnel (DA Form 4240) during the retired pay application process.
In this document, the applicant indicated he was not married and had no
dependent children.  Further, based on his not having qualified
beneficiaries, he elected no RCSBP coverage.

4.  On 6 April 1994, ARPERCEN Orders Number P-04-400243, authorized the
FSM’s placement on the Retired List on 26 April 1994.  On 14 April 1994,
ARPERCEN notified the FSM that his application for retired pay was
approved.
5.  On 17 October 1998, the applicant and FSM were married.  There is no
information or documentation that indicates the FSM applied for RCSBP
spouse coverage for his wife subsequent to being married.  On 25 February
2003, the FSM died.

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 RCSBP 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.  Normally an election, once made, is irrevocable except as provided for
by law.

7.  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 RCSBP but who later marries or acquires a dependent child may elect
to participate in the RCSBP.  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 claim that the FSM was ignorant of the application
procedures for RCSBP participation and did not intend to decline
participation was carefully considered.  Although the applicant refers to a
letter from the FSM apparently requesting RCSBP coverage, she failed to
provide a copy of the letter with her application and no such letter is
contained in the FSM’s record.  As a result, the applicant has failed to
provide a sufficient evidentiary basis to support granting the requested
relief.

2.  RCSBP is not an entitlement and coverage is not automatic.
Participation in the RCSBP must be elected and premiums paid similar to
those paid to obtain life insurance coverage.
3.  By law, a member who was not married upon becoming eligible to
participate in the RCSBP but who later marries may elect to participate in
the RCSBP.  However, a written election must be made, signed by the person
making the election and must be received by the Army within one year of the
date of marriage.  In this case, the FSM and applicant were married on 17
October 1998. As a result, the law required the FSM to submit a written
RCSBP election by
16 October 1999 in order for the applicant to be eligible for RCSBP
benefits.

4.  The evidence provided by the applicant fails to show the FSM attempted
to enroll in the RCSBP within one year of his marriage to the applicant, or
at anytime in the over four years that passed between his marriage to the
applicant in 1998 and his death in 2003.  Lacking any evidence to confirm
it was the FSM’s intent to enroll in the RCSBP within the one year period
after his marriage allotted for by the governing law, there is an
insufficient evidentiary basis to support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JCH___  _BJE____  _PMS ___  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.




            ____JAMES C. HISE______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101436                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/DD                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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