RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 November 2005
      DOCKET NUMBER:   AR20050002790


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John Denning                  |     |Member               |
|     |Ms. Jeanette McCants              |     |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 only coverage.

2.  The applicant states, in effect, the FSM died on 11 July 1996 while
still actively drilling in the U.S. Army Reserve (USAR).  She states she
was never informed of the RCSBP benefit and that she never consented in
writing to decline full coverage as required by law.

3.  The applicant provides a letter from a Veterans Service Office, dated
11 February 2005, with five enclosures outlined in this letter.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 30 December 1946.  He enlisted in the Regular Army
on 10 May 1967 and was honorably discharged on 14 March 1975.  He married
the applicant on 11 May 1974.  The FSM enlisted in the Army National Guard
on 18 April 1981 and was honorably discharged on 25 July 1985.  He enlisted
in the USAR on 26 July 1985 and remained in the USAR through continuous
reenlistments.  He was promoted to master sergeant on 8 November 1990.

2.  The FSM's notification of eligibility for retired pay at age 60 (his 20-
year Letter) is dated 26 November 1993.  Paragraph 4 of this letter
pertains to the RCSBP and DD Form 1883 (Survivor Benefit Plan Election
Certificate).  Records at the U.S. Army Human Resources Command - St. Louis
indicate that the FSM's records did not contain a DD Form 1883.  It appears
he did not return the DD Form 1883.

3.  The FSM died on 11 July 1996 while serving in the USAR.

4.  In the processing of his case, an advisory opinion was prepared by the
Supervisor of Retirements and Annuities, U.S. Army Human Resources Command
- St. Louis.  The advisory opinion recommended disapproval of the
applicant's request.  It pointed out that the FSM's records were reviewed
and his file contained a 20-year Letter published and mailed to the FSM on
26 November 1993.  It also pointed out that by law the Soldier only had 90
days to return the completed DD Form 1883.  Failure to do so resulted in
the Soldier not being enrolled in RCSBP.  The FSM failed to provide an
annuity for his spouse by not returning his DD Form 1883.

5.  A copy of the advisory opinion was provided to the applicant for
comment.  The applicant responded with a rebuttal.  In summary, she stated
that the advisory opinion was in error for three reasons:  (1) She
questions whether or not the RCSBP packet was sent to the FSM by certified
mail.  (2) In accordance with Public Law 95-397, notification to the spouse
is required if the Soldier designates less than full coverage or declines
to participate in RCSBP. The Soldier and spouse will sign the DD Form 1883
as required and have it witnessed by a disinterested person.  Since the
DEERS system had the FSM coded as married and she was not notified and did
not sign a DD Form 1883, the designation by not responding in 90 days is
not valid.  (3) Public Law 99-145, effective 1 March 1986, requires that
the spouse be fully informed of the designation and its meaning; the spouse
must state in writing that she is aware of, understands, and concurs with
the designation; if that concurrence is not received from the spouse by the
60th birthday of the retiree or retirement eligible USAR Soldier, the
Defense Finance and Accounting Service will initiate full coverage under
the SBP until the spousal concurrence is received.  She requests enrollment
in the RCSBP (option B) and that the annuity begin at the FSM's 60th
birthday as required by Public Law 99-145, which was in place prior to
26 November 1993 when the notification was mailed.

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

7.  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.  Before the law was amended in October 2000, a member must have made
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 resulted in the default election of option A,
decline enrollment and choose at age 60 whether to start SBP participation.

8.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986,
required a spouse's written concurrence for a retiring member's election
that provides less than the maximum spouse coverage for Survivor Benefit
Plan (active duty service members).

9.  Public Law 106-398, enacted 30 October 2000, required written spousal
consent for a Reserve service member to be able to delay making an RCSBP
election until age 60.  The law is applicable to cases where 20-year
letters have been issued after 1 January 2001.  In other words, failure to
elect an option now results in the default election of option C, elect that
the beneficiary receive an annuity immediately upon the Reserve service
member's death if before age 60.

DISCUSSION AND CONCLUSIONS:

1.  Public Law 99-145 required a spouse's written concurrence for an active
duty retiring member's election that provided less than the maximum spouse
coverage for the SBP, not the RCSBP.  Public Law 106-398, enacted on 30
October 2000, required written spousal consent for a Reserve member to
delay making an RCSBP election.  However, this requirement only applied to
cases in which the 20-year letter was issued after 1 January 2001.  The
FSM's 20-year letter was issued in 1993.

2.  The applicant provides insufficient evidence to show the FSM did not
receive his 20-year Letter and, regrettably, Public Law 99-145 did not
apply in her case. Therefore, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

LE_____  JD______  JM______  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.


            __Lester Echols_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002790                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051117                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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