RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060003280


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald Purcell                |     |Member               |
|     |Ms. Karmin 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, as the widow of a deceased former service member (FSM),
requests, in effect, that the FSM’s military records be corrected to show
she applied for the Reserve Component Survivor Benefit Plan (RCSBP) annuity
in a timely manner.

2.  The applicant states, in effect, that the FSM died in 1998 and when she
received his retirement application in 2005, she was informed that she was
entitled to death benefits.  She contends that when she reported the FSM’s
death in 1998, the Army did not inform her that she was entitled to any
benefits.  She also states that she was informed that she only had seven
years from the FSM’s death to claim the SBP annuity.

3.  The applicant provides a DD Form 1883 (Survivor Benefit Plan Election
Certificate), dated 20 August 1989; a print-out of the FSM’s RCSBP
information; a letter, dated 13 December 2005, from the U.S. Army Human
Resources Command; her 2006 marriage license and certification; and the
FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 6 November 1947.  He enlisted in the Army National
Guard on 20 February 1969.  He and the applicant married on 23 April 1969.
His notification of eligibility for retired pay at age 60 is dated 26 July
1989.

2.  On 20 August 1989, the FSM completed a DD Form 1883 and enrolled in the
RCSBP for spouse only coverage, full base amount, option C.

3.  The FSM was placed on the retired list effective 1 June 1991.

4.  On 29 January 1998, the FSM died.

5.  In the processing of this case, a staff advisory opinion was obtained
from     the Transition and Separations Branch, Retirements and Annuities,
U.S. Army Human Resources Command, St. Louis, Missouri (USAHRC - STL).  The
opinion states that the applicant submitted her RCSBP claim in 2005 and
that office certified the claim and sent it to the Defense Finance and
Accounting Service (DFAS) for payment.  DFAS refused to make the payment,
citing Title 31, U.S. Code, section 3702(b) (the claim must be filed within
six years of the event).  USAHRC - STL referred the widow to this Board.
USAHRC - STL recommended that the Board find in favor of the widow based on
grounds of compassion and stated that the widow is not a Soldier or member
of the Armed Forces and was not aware of the requirement to submit a claim
within a specified period.

6.  The advisory opinion was provided to the applicant on 8 August 2006 for
comment or rebuttal.  The applicant concurred with the advisory opinion on
16 August 2006.

7.  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.

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; and (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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant failed to apply for the
RCSBP annuity in a timely manner.  However, the evidence of record also
shows the FSM enrolled in the RCSBP in 1989 for spouse only coverage, full
base amount, option C.  The advisory opinion made a valid point that the
applicant is not a military member.  She should not be penalized for not
knowing the applicable laws.

2.  In view of the foregoing, the Army’s records should be corrected to
show the applicant applied for the RCSBP annuity on 1 March 1998 and
returned the application to the appropriate office in a timely manner.

BOARD VOTE:

JI______  __GP____  __KJ____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  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 the applicant applied for the RCSBP annuity on 1 March
1998 and returned the application to the appropriate office in a timely
manner, where it was processed in a timely manner.

2.  That the applicant be paid the RCSBP annuity effective 29 January 1998,
the date of the FSM’s death.




                                  ____John Infante______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003280                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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