RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20050016420


      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. William D. Powers             |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Mr. William F. Crain              |     |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 coverage.

2.  The applicant states, in effect, the FSM was an active member of the U.
S. Army Reserve and a civilian employee at the Pentagon when he died
unexpectedly at age 51.  After his burial, she relocated to Florida.  This
and other decisions were made in great haste.  Before her move, she
inquired of someone if she should expect "monies" or other benefits.  She
was told that in all likelihood she should wait until the FSM would have
been age 60.

3.  The applicant states that, for some time, she was diagnosed with severe
depression and was placed on medication.  Years passed, and she had a job
she liked and earned enough to live on.  Then, in 1998, she was placed on
disability. At that time, she realized the FSM would have been 60, and she
started making inquiries.  However, no one would provide her with
information until recently, when she was informed the FSM did not sign the
necessary paperwork.

4.  The applicant states she then went through boxes and boxes of stored
papers.  She discovered a piece of paper that shows the FSM intended her to
receive the RCSBP annuity.

5.  The applicant provides the FSM's Chronological Statement of Retirement
Points dated 18 September 1987; his DD Form 93 (Record of Emergency Data);
his birth certificate; her birth certificate; their marriage
license/certificate; his death certificate; and an RCSBP document dated 7
January 1979.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 23 April 1938.  After having had prior enlisted and
warrant officer service, he was commissioned in the Army National Guard on
    3 September 1968.  He and the applicant had married on 9 September
1961.    He transferred to the U. S. Army Reserve on 26 July 1970.  His
notification of eligibility for retired pay at age 60 (his 20-year letter)
is dated 14 September 1978.

2.  On 7 January 1979, the FSM signed an untitled document that stated
“Under the provisions of Public Law and Chapter 67, Title 10, USC, I wish
to participate in the extended SBP Program.  I select the following
option."  He checked that he selected Option C, "I elect immediate annuity
starting the date of my death, whatever my age at death."  The FSM, the
applicant, and a witness signed this document.

3.  On 24 September 1989, the FSM died at age 51.

4.  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.  An Open Season was established from 1 October
1978 through 30 September 1979 and later extended to 31 March 1980.

5.  At the time of the Open Season, the Office of the Adjutant General, U.
S. Army Reserve Personnel Center sent a letter dated 1 July 1979 to "Dear
SBP-Eligible Reserve Component Member."  It announced that the RCSBP was
created effective 1 October 1978.  It gave a phone number to call with
inquiries.  Members were encouraged to complete the enclosed DD Form 1883
even if they did not desire to participate.

6.  Public Law 97-35, enacted 12 August 1981, established the second Open
Season from 1 October 1981 through 30 September 1982.  A packet was mailed
to Reserve Component members announcing the Open Season.  Enclosed was a U.
S. Army Reserve Personnel Center memorandum, subject:  Open Enrollment
Period for the RCSBP.  The packet went to all retirement-eligible
Reservists and Army National Guardsmen.  It read, "If you desire to
participate, increase participation, or change coverage, please complete
and return the inclosed (sic) postal card.  Upon receipt, you will be
provided with the appropriate form for this purpose and a pamphlet to
assist you in deciding on your new election."

7.  Public Law 97-252, enacted 8 September 1982, established a third Open
Season, from 24 September 1983 through 23 September 1984, for Reservists
who were eligible for retired pay except for being age 60 as of 13 August
1981.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record to show the FSM completed a DD Form 1883
(Survivor Benefit Plan Election Certificate), one of which should have been
sent to him, with a cover letter, by mail around July 1979.

2.  However, the cover letter would have informed the FSM that members were
encouraged to complete the enclosed DD Form 1883 even if they did not
desire to participate.  It did not state members were required to complete
the form if they desired to participate in the RCSBP.

3.  The 7 January 1979 form that the FSM, his wife, and a witness signed
did not indicate it was a temporary document (such as a statement of intent
to participate), valid only until a specific RCSBP enrollment document was
established.  That 7 January 1979 form indicated that he selected to
participate in the RCSBP for Option C.  Therefore, it is reasonable to
presume the FSM believed that he had already completed an official form
electing to participate in the RCSBP and that he therefore did not need to
complete an additional form either around July 1979 or during a subsequent
Open Season.

4.  Since the FSM did not live to apply for or receive retired pay (he died
9 years prior to turning age 60), he would never have received a Retiree
Account Statement indicating he was not paying for the RCSBP.  In this
case, any reasonable doubt should be resolved in favor of the applicant.

BOARD VOTE:

__wdp___  __mjt___  __wfc___  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 he completed a DD Form 1883 on 1 July 1979 and elected to
participate in the RCSBP for spouse coverage, full base amount, option C;
     b.  showing the applicant applied for the RCSBP annuity on 25
September 1989; and

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




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016420                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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