RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20060001219


      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. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 elected to participate
in the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states the FSM was medically discharged from the Army
National Guard (ARNG) with eligibility for early retirement.  The North
Carolina National Guard has no record that the FSM was afforded the
information or the opportunity to complete the RCSBP.  Had he been, she
states he would have elected the benefit for her.

3.  The applicant provides a letter, dated 20 January 2006 and addressed to
this Board, from the North Carolina National Guard; a letter, dated 15
December 2005, from the U. S. Army Reserve Personnel Command; a DD Form
2656-7 (Verification for Survivor Annuity) with a Direct Deposit Sign-Up
Form and a     W-4P (Withholding Certificate for Pension or Annuity
Payments); a 29 November 2005 letter addressed to the U. S. Army Human
Resources Command – St. Louis from the North Carolina National Guard; the
FSM’s ARNG Retirement Points History Statement; the FSM’s death
certificate; the FSM’s notification of eligibility for retired pay at age
60 with 15 years of service (his 15-year letter); the FSM’s National Guard
Bureau (NGB) Form 22 (Report of Separation and Record of Service); orders
assigning the FSM to the Retired Reserve; their marriage certificate; and
the applicant’s birth certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 20 January 1949.  He and the applicant married on
 18 August 1975.  After having had prior service, he enlisted in the ARNG
on       7 February 1983.

2.  On 31 May 1998, the FSM was discharged from the ARNG by reason of being
medically unfit (for health problems due to asthma or asthmatic bronchitis)
for retention in the Selected Reserve.

3.  The FSM’s 15-year letter is dated 31 May 1998.  This letter lists three
enclosures.  An “SBP Checklist” is listed as enclosure 2.  The DISTRIBUTION
on the letter states, “Soldier (1, less Encl 2).”

4.  The FSM died on 28 October 2005.

5.  By letter dated 20 January 2006, the North Carolina National Guard
stated, “As a matter of record, we have researched our archives and active
files and can find no record or documents indicating that (the FSM’s name)
was ever given an opportunity to execute a Survivor Benefit (RCSBP)
election.  There is no record of any notification to the Soldier by this
office or any of the units listed in the distribution list on 15-Year
Letter.”

6.  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.

7.  At the time the FSM received his 15-year letter, a member must have
made the RCSBP election within 90 days of receiving the notification of
eligibility to receive retired pay at age 60, or else wait until he/she
applied for retired pay and elected to participate in the standard SBP.  In
other words, failure to elect an option resulted in the default election of
option A.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and the North Carolina National Guard’s
       20 January 2006 letter have been carefully considered.  Her argument
appears to have some merit.

2.  The FSM’s 15-year letter listed an SBP checklist as an enclosure.
However, it appears that it was not actually provided to him as an
enclosure.  If he noted that the checklist was in fact not enclosed, he had
a responsibility to himself to obtain that checklist from his unit.
However, it is also noted that the applicant had been separated for
disability.  Any reasonable doubt concerning his fitness to notice an error
such as that should be resolved in the applicant’s (the FSM’s widow) favor.

3.  Therefore, it would be equitable to correct the FSM’s records show he
elected to participate in the RCSBP for spouse coverage, option C, full
base amount.

BOARD VOTE:

__alr___  __lmb___  __qas___  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
showing he elected to participate in the RCSBP on 31 May 1998 for spouse
coverage, option C, full base amount and that the applicant be paid the
annuity retroactive to the date of the FSM’s death.




                                  __Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2000001219                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|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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