RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060001370


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, that her husband did not send in the
SBP forms that were sent to him at the time he was notified of his
eligibility for retired pay at age 60 in 1992.  She requests, in effect,
that her husband's records be reviewed to determine if she is eligible to
receive an SBP annuity.

3.  The applicant provides a copy of a transcript of the Memorandum of
Marriage License Record in the Orphans' Court Division of Fayette County,
dated
11 August 1986; and Commonwealth of Pennsylvania, Department of Health,
Vital Records, Certificate of Death, Certificate Number P10611383, filed
25 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the Regular
Army on 29 May 1967 and served in Vietnam from 23 October 1967 to 22
October 1968.  The FSM and the applicant married on 2 January 1969.  The
FSM attained the rank of staff sergeant (E-6) and was honorably separated
from active duty on 28 May 1970 after completing 3 years of service.  The
FSM transferred to the U.S. Army Reserve on 29 May 1970.

2.  The FSM's military service records show that, effective 28 July 1991,
he was credited with completing 20 qualifying years for retirement.

3.  The FSM's military service records contain a copy of Headquarters,
99th Army Reserve Command, Oakdale, Pennsylvania, memorandum, dated
12 March 1992, subject:  Memorandum of Instruction - Processing of Letter
of Notification for Non-Selection for Continued Unit Participation Under
the Provisions of Chapter 4, Army Regulation 135-205.  This memorandum
shows, in pertinent part, that separation of the FSM would be completed not
later than
60 days after his 20-year letter had been issued.

4.  The FSM's military service records contain a copy of Headquarters, U.S.
Army Reserve Personnel Center, St. Louis, Missouri, memorandum, dated 6
April 1992, subject:  Notification of Eligibility for Retired Pay at Age
60.  This document shows, in pertinent part, that the FSM was notified of
his entitlement to participate in the RCSBP established by Public Law 95-
397.  This memorandum provides, in pertinent part, "This plan enables you
to provide an annuity for your spouse, and other eligible beneficiaries.
BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS
LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD FORM
1883).  IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU
WILL NOT BE ALLOWED TO OBTAIN SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR
RETIRED PAY AT AGE 60.  IF YOU DO NOT ELECT COVERAGE AND SHOULD DIE BEFORE
AGE 60, THERE WILL BE NO BENEFITS FOR YOUR SURVIVORS.  More detailed
information concerning participation in the Reserve Component Survivor
Benefit Plan (RC-SBP) and blank DD Form 1883 are enclosed."

5.  The FSM's military service records contain a copy of a DA Form 4651-R
(Request for Reserve Component Assignment or Attachment), dated 9 July
1992.  This document shows, in pertinent part, in Item 7 (Inclosures) that
a copy of the 20-year letter was attached to the form.  Item 3 (Name and
Current Address), section n (Typed Name, Grade and Signature of Reservist),
shows the FSM signed the document on 3 July 1992.  The FSM was reassigned
to the U.S. Army Reserve Control Group (Reinforcement), U.S. Army Reserve
Component Personnel and Administration Center, St. Louis, Missouri,
effective 23 July 1992.

6.  The FSM died on 23 August 2004 at the age of 56.  The Certificate of
Death shows, in pertinent part, that the applicant was married to the FSM
at the time of his death.

7.  There is no evidence in the available records that shows the FSM made a
written election to participate in the RCSBP, and the applicant states in
her application to the Board that he did not submit the election in 1992.

8.  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.

9.  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 RCSBP 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; or (c) elect that a
beneficiary receive an annuity immediately upon their death if before age
60.  A member must make the
election within 90 days of receiving the notification of eligibility to
receive retired pay at age 60 or else wait until he/she applies for retired
pay and elect to participate in the standard SBP.

10.  Public Law 99-145, enacted 8 November 1985, but effective 1 March
1986, required a spouse's written concurrence for a retiring active duty
service member's election that provides less than the maximum spouse
coverage for SBP.

11.  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 (the
beneficiary will receive an annuity immediately upon the Reserve service
member's death if before age 60).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates that the FSM received his 20-year
letter with the accompanying forms in 1992, but failed to send in his SBP
election form at that time.  In addition, there is no evidence of record to
show that the FSM attempted to enroll in the RCSBP at any time.

2.  Public Law 99-145 required a spouse's written concurrence for a
retiring active duty service member's election that provided less than the
maximum spouse coverage for the SBP, but did not apply to the RCSBP.
Public Law
106-398, enacted on 30 October 2000, required written spousal consent for a
Reserve member to delay making an RCSBP election.  However, this
requirement only applied to cases in which the 20-year letter was issued
after
1 January 2001.

3.  The FSM's 20-year letter was issued in 1992, so regrettably, Public Law
99-145 does not apply in the applicant's case.  Therefore, there is no
basis for granting the applicant's request.

4.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JI  ___  __GJP__  ___KSJ__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




                                  _____ John Infante______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001370                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19920723                                |
|DISCHARGE AUTHORITY     |AR 140-10, 10 USC 67                    |
|DISCHARGE REASON        |Eligible for Retired Pay at Age 60      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0100.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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