RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 December 2005
      DOCKET NUMBER:   AR20050004640


      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. Richard Dunbar                |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Mr. Scott Faught                  |     |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 his military records be
corrected to show he elected to participate in the Reserve Component
Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states his survivor benefit plan has the wrong
beneficiary listed. He contends he filled out a new DD Form 1883 (Survivor
Benefit Plan Election Certificate) in August 1991, two months after his
second marriage.  He states in January 1999 it was discovered that his 1991
DD Form 1883 was not in his file, so he filled out another DD Form 1883 in
January 1999.  He contends that his retirement paperwork was submitted on
or about April 2002 for his December 2002 retirement and that his local
retirement office submitted it correctly and resubmitted it in January 2003
and again in July 2003.

3.  The applicant provides two Retiree Account Statements; a 1991 marriage
certificate; a DD Form 1883, dated 28 January 1999; and a DD Form 1883,
dated 8 September 1986.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 18 December 1942.  He enlisted in the Army
National Guard on 2 February 1966.  Although the applicant's date of
marriage to his first wife is not available, they were divorced in 1979.

2.  The applicant's notification of eligibility for retired pay (his 20-
year letter) is dated 13 June 1986.

3.  A DD Form 1883 dated 8 September 1986 shows the applicant was not
married and he elected to participate in the RCSBP on that date for
children only coverage, full base amount, option C.

4.  The applicant remarried on 30 June 1991.

5.  The applicant provided a DD Form 1883 dated 28 January 1999, which
shows he elected to participate in the RCSBP on that date for spouse and
children coverage, full base amount, option C.

6.  The applicant was honorably discharged from the Army National Guard and
transferred to the Retired Reserve effective 1 April 2002.

7.  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 approval of the applicant's
request.  It pointed out that the applicant was not allowed to change his
RCSBP election because he failed to notify the service of his second
marriage (in June 1991) within one year of the marriage as required by law.
 It also pointed out that the applicant's attempt to enroll his wife when
he retired was also denied by the Defense Finance and Accounting Service
for the same reason.  The opinion went on to state the following: the
applicant provided documents which state that a new DD Form 1883 was
completed in 1999 when the unit realized that his current wife was not
listed.  According to the applicant, he completed a new DD Form 1883 in
August 1991 (two months after his marriage to his current wife) and in
January 1999 discovered that it was not in his unit file.  He then
completed another DD Form 1883 and dated it with the current date.  There
appears to have been no administrative error made by the Army, although the
applicant states his August 1991 DD Form 1883 was not in his unit file.  In
the interest of compassion, the opinion recommended that the applicant be
permitted enrollment effective August 1991 and that he be charged effective
from that date for coverage under spouse and children.

8.  A copy of the advisory opinion was provided to the applicant for
comment.  The applicant concurred with the advisory opinion on 22 October
2005.

9.  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.

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 does not occur before age 60, the RCSBP costs for
options B and C are deducted from the member's retired pay (costs for
option C being the more expensive).  Once a member elects either options B
or C in any category of coverage, that election is irrevocable.  Option B
and C participants do not make a new SBP election at age 60.  They cannot
cancel SBP participation or change options they had in RCSBP, and RCSBP
coverage automatically rolls into SBP coverage.  If RCSBP option B or C is
elected, there is a Reservist Portion cost added to the basic cost of the
SBP to cover the additional benefit and assured protection had the member
died prior to age 60.

11.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is
not married and 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.

12.  The National Defense Authorization Act for Fiscal Year 2005
established an Open Season to be conducted 1 October 2005 to 30 September
2006.  It requires that enrollees live two years from the effective date of
election for beneficiaries to be eligible for an annuity.  The retiree must
pay monthly premiums starting on the date of enrollment and a buy-in
premium covering all the costs that would have been paid for the election
if it had been made at the first opportunity to do so.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he filled out a new DD Form 1883 in August
1991 (two months after his second marriage).  He should have received his
copy of that DD Form 1883 but does not provide that DD Form 1883 or any
other evidence that shows he elected RCSBP spouse coverage on that date.
Therefore, there is insufficient evidence to show he made a written RCSBP
election for spouse coverage within 1 year of the date of his second
marriage, as required by law.

2.  However, the applicant will have a 1 year opportunity, beginning on 1
October 2005, in which to enroll in the RCSBP for spouse coverage.  He
should contact his nearest Retirement Services Officer (RSO) now for
further information.  A copy of the RSO Directory will be provided to him.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

RD_____  _JG_____  _SF_____  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.




            ___Richard Dunbar_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004640                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|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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