RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050015385


      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. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Donald Lewy                   |     |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 military 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, at the full base amount, option C.

2.  The applicant states that she believes her husband thought she would
automatically be covered under RCSBP unless they both signed the form to
decline coverage.  If he declined coverage, she was unaware of it.  She
states that she was supposed to be automatically covered under RCSBP as of
            1 January 2001 at the maximum level, based on Public Law 106-
398, Section 655. The FSM received his 20-Year Letter after 18 November
2000.  He had     90 days from the date of receipt to respond, which would
have given him until late February 2001, well after the date that law
changed.  She states the law changed in order to protect spouses by
requiring their signatures on any choice other than option C.

3.  The applicant provides a supplemental letter; a memorandum from a
commanding officer at Fort Bragg, North Carolina; a DD Form 1884
(Application For Annuity Under The Retired Serviceman's Family Protection
Plan (RSFPP) and/or SBP); a Direct Deposit Sign-up Form; the FSM' s
Certificate of Death; her Form W-4P (Withholding Certificate for Pension or
Annuity Payments); the FSM's reassignment orders to the Retired Reserve;
the FSM's 20-Year Letter; the FSM's Chronological Statement of Retirement
Points; and RCSBP information.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 16 August 1956.  He and the applicant were married
on 15 October 1975.  After having had prior service in the Regular Army,
the FSM enlisted in the U.S. Army Reserve on 9 October 1991.

2.  The FSM's notification of eligibility to receive retired pay at age 60
(20-Year Letter) is dated 18 November 2000.  The memorandum stated the FSM
had 90 days from the date he received the memorandum to submit his DD Form
1883 (SBP Election Certificate) and if he did not submit his election
within 90 calendar days, he would not be entitled to survivor benefit
coverage until he applied for retired pay at age 60.  If he did not elect
coverage and should die before age 60, his survivors would not be entitled
to benefits.

3.  There is no evidence of record that shows the FSM completed a DD Form
1883 to enroll in the RCSBP for spouse coverage, full base amount, option
C.

4.  The FSM was transferred to the Retired Reserve on 31 January 2001.

5.  The FSM died on 24 September 2003.  The death certificate shows his
marital status as married.

6.  Information obtained from the Defense Finance and Accounting Service
(DFAS) on 24 May 2006 revealed that the FSM did not submit a DD Form 1883
to enroll in the RCSBP.

7.  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.

8.  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 occur before
age 60, the RCSBP costs for options B and C are deducted from the annuity.


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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM’s 20-Year Letter was dated
18 November 2000.  He was married at that time; however, he did not elect
to enroll in RCSBP.

2.  Public Law 106-398 is applicable to cases where 20-Year letters were
issued after 1 January 2001.  Since the FSM's 20-Year Letter was issued in
November 2000, this law does not apply in this case.  His 20-Year Letter
clearly informed him he had to make an election within 90 days, or else he
would have to wait until age 60 to elect to participate.  Therefore, the
FSM's failure to elect an RCSBP option did not default to the election of
option C.

3.  Regrettably, in view of the foregoing, there is no basis for granting
the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JV______  BE______  DL______  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 Vick____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015385                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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