RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            5 August 2004
      DOCKET NUMBER:   AR2004101899


      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. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |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.  The applicant requests, in effect, that the records of her deceased
spouse, a former service member (FSM), be corrected to show that he elected
to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for
spouse coverage.

2.  The applicant states that she knows the FSM never received the letter
that gave him the opportunity to change from option A to option C.  The FSM
was adamant about keeping his military records up to date and he would
have, if he had received the letter, completed and had her sign the form.

3.  The applicant provides the FSM's DD Form 1883 (Survivor Benefit Plan
Election Certificate); a certified mail receipt dated 1 March 1989
addressed to the FSM; a  U. S. Army Reserve Personnel Center (ARPERCEN)
letter dated 17 May 1989; an ARPERCEN letter dated 26 March 1992; an SGLV
8286 (Servicemembers' Group Life Insurance Election and Certificate); a DD
Form 93 (Record of Emergency Data); a unit death notice dated 3 December
2003; the death certificate; and the FSM's Retirement Points History
statement.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 30 May 1948.  After having had prior enlisted
service in the U. S. Army Reserve (USAR), he was appointed a warrant
officer in the USAR on 23 April 1986.

2.  The FSM's notification of eligibility for retired pay at age 60 (his 20-
year letter) is dated 12 November 1986.

3.  On 3 March 1989, the FSM completed a DD Form 1883.  On that form, he
checked that he had dependent children and that he elected children only
coverage "At this time."  He also checked that he elected option A.  He
failed to check if he was or was not married.

4.  By letter dated 17 May 1989, ARPERCEN informed the FSM that his DD Form
1883 was incorrectly completed.  He needed to indicate whether he was
married.  Since he had elected children only coverage, he had to elect
either option B or option C.  If he were married, he and his spouse had to
sign the reverse of the DD Form 1883.  The letter was addressed to him in
Chesterfield, PA.

5.  A DD Form 1172 (Application for Uniformed Services Identification Card
DEERS Enrollment) dated 3 May 1990 on file in the FSM's Official Military
Personnel File shows the FSM and the applicant married on 21 October 1989.
The DD Form 1172 shows his address as Midlothian, VA.
6.  By letter dated 25 March 1992, ARPERCEN informed the FSM again that his
DD Form 1883 was incorrectly completed and he had not returned a corrected
DD Form 1883 as previously requested.  The letter was addressed to him in
Chesterfield, PA.

7.  The SGLV 8286 shows that the FSM designated the applicant as his
beneficiary for his servicemember's life insurance.  The DD Form 93 shows
he designated her as his beneficiary for unpaid pay and allowances.

8.  The FSM died on 22 November 2003.

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.

10.  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 or else wait until he/she applies for retired pay and
elect to participate in the standard SBP.  In other words, failure to elect
an option results in the default election of option A.

11.  Public Law 101-189, enacted 29 November 1989, established an Open
Season to be conducted 1 October 1991 through 30 September 1992.  Extensive
publicity was given in Army Echoes, the Army bulletin published and mailed
to retirees to keep them abreast of their rights and privileges and to
inform them of developments in the Army.  Army Echoes has been provided to
gray-area retirees since the 1980s.

12.  Public Law 101-510, enacted 5 November 1990, delayed the start of the
third Open Season to 1 April 1992 through 31 March 1993.

13.  Public Law 105-261, enacted 17 October 1998, established an Open
Season to be conducted 1 March 1999 through 29 February 2000.  Extensive
publicity was given in Army Echoes.

14.  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 contentions are noted, and it is acknowledged that it
appears the two ARPERCEN letters were mailed to the FSM at an old address.

2.  However, receipt of either of the May 1989 or the March 1992 letters
would not of themselves have enabled the FSM to elect spouse RCSBP
coverage.

3.  The available evidence of record shows that the FSM was not married to
the applicant in May 1989; therefore, he could not have elected spouse
coverage at that time.

4.  The available evidence of record shows that the FSM and the applicant
married in October 1989; therefore, by the time the March 1992 letter was
sent out more than one year had passed since their marriage.  By law, an
SBP election for spouse coverage must be made within one year of a post-
retirement marriage.

5.  The FSM had two further opportunities to enroll in the RCSBP for spouse
coverage – during the April 1992 through March 1993 Open Season and during
the March 1999 through February 2000 Open Season.

6.  The applicant provides no evidence to show the FSM attempted to enroll
in the RCSBP for spouse coverage either during the one-year period after
their marriage or during either of the two Open Seasons available to him.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __rtd___  __lmb___  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.




            __Walter T. Morrison__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101899                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |5 August 2004                           |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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