RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050013725


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 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) for spouse coverage in a
timely manner.

2.  The applicant states the FSM was not counseled regarding the one-year
time limit on adding/changing RCSBP beneficiaries.

3.  The applicant provides the FSM's DD Form 1883 (Survivor Benefit Plan
Election Certificate); their marriage certificate; his death certificate;
his notification of eligibility for retired pay at age 60 (his 20-year
letter); his DD Form 108 (Application for Retired Pay Benefits) with his
Army National Guard Retirement Points History Statement; a 13 September
2005 letter from the Alabama, State Military Department, State Family
Program Director; a Withholding Certificate for Pension or Annuity
Payments; a void check; a Direct Deposit Sign-up Form; and a 26 August 2005
letter from the U. S. Army Human Resources Command – St. Louis (USAHRC –
STL).

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Army National Guard on 9 December 1964.  After
a short break in service, he reenlisted in the Army National Guard on 24
April 1971.

2.  The FSM's 20-year letter is dated 31 January 1986.  On 24 April 1986,
he completed a DD Form 1883.  He indicated that he was not married, that he
had two dependent children (born in August 1969 and February 1975), and
that he elected to participate in the RCSBP for children only coverage,
option C, full base amount.

3.  The FSM and the applicant married on 21 September 1987.

4.  The FSM was separated from the Army National Guard and transferred to
the Retired Reserve on 7 July 1989.

5.  The applicant provided a 26 August 2005 letter from the Transition and
Separations Branch, USAHRC – STL that indicated the Branch discovered the
FSM had completed a DD Form 1883 dated 22 February 1991 attempting to
enroll in the RCSBP for spouse coverage.  This DD Form 1883 is not
available.

6.  The applicant provided a 13 September 2005 memorandum from the
individual who witnessed the DD Form 1883 dated 22 February 1991.  The
witness stated he was not aware of the one-year limitation on changing
beneficiaries of the SBP.  The witness stated that was an error on his part
as a First Sergeant and Full-time Unit Administrator.

7.  The FSM died on 30 June 2005 at age 58.

8.  The Board analyst was informed by a point of contact for the applicant
that she and the FSM had no children.  The Defense Finance and Accounting
Service verified that no one is receiving the RCSBP annuity.

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members on active duty 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 the member dies before reaching age 60, premiums are
deducted from the annuity.

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

DISCUSSION AND CONCLUSIONS:

1.  By law, the FSM had one year from the date of his marriage to the
applicant to add her as an RCSBP beneficiary.  They married in September
1987, but he did not make the election until February 1991.  The witness's
statement that he (the witness) was not aware of the one-year limitation on
changing beneficiaries of the SBP has been considered but is not
persuasive.  By time he witnessed the DD Form 1883 the one year period had
already passed.  However, there was no record at USAHRC – STL to indicate
the February 1991 DD Form 1883 had been returned to the FSM as an invalid
election.

2.  The witness, as a First Sergeant and as a unit administrator, should
have been aware that an Open Season had been declared.  Twice, in November
1989 and in November 1990, before the FSM completed the February 1991 DD
Form 1883, laws had been passed concerning holding an Open Season.  If the
FSM had been informed his February 1991 RCSBP election was invalid, the
witness could have informed the FSM he could enroll in the RCSBP for spouse
coverage during the Open Season that commenced on 1 April 1992.

3.  As there is no child beneficiary eligible to receive the RCSBP annuity,
it would be equitable to correct the FSM's records to show he elected to
enroll in the RCSBP for spouse (and children) coverage on 1 April 1992, the
first day of the Open Season.  The Defense Finance and Accounting Service
will collect back premiums as appropriate.

BOARD VOTE:

__bpi___  __dws___  __eem___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  showing the FSM elected to enroll in the RCSBP for spouse (and
children) coverage, option C, full base amount on 1 April 1992 during the
Open Season;

     b.  having the Defense Finance and Accounting Service collect back
premiums; and

     c. paying to the applicant the annuity retroactive to the date of the
FSM's death.




                                  __Bernard P. Ingold___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013725                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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