RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 November 2006
      DOCKET NUMBER:  AR20060004255


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Ms. Ernestine Fields              |     |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 she, as the spouse of the
deceased former service member (FSM), be granted a Survivor Benefit Plan
(SBP) annuity.

2.  The applicant states, in effect, that the FSM's records were either
lost or misfiled.  She only recently received copies of some of the missing
documents.

3.  In an additional statement, the applicant states that the FSM passed
away on 7 August 2001, just 12 days short of his 55th birthday.  A few
weeks after his passing, she contacted the California Army National Guard
(CAARNG) and St. Louis records office.  She was informed by someone at St.
Louis, that as the surviving spouse, she was eligible for survivor benefits
that would amount to 55 percent of her spouse's retirement or approximately
$234 monthly.  Upon hearing this information, she asked what she needed to
do to begin the process. She faxed a copy of her marriage license, the
FSM's death certificate, and the FSM's DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).  She was told at that time
that she should have a copy of the FSM's 20 Year Letter (Notification of
Eligibility for Retired Pay at Age 60) and various other forms which she
began searching for.

4.  She states that one year prior to the FSM's passing, their business
burned to the ground.  This meant nothing, except that they had stored
several years of their personal papers there.  She contacted St. Louis
again, and was told that they could not find the FSM's DD Form 1883 (SBP
Election Certificate).  As far as the military was concerned, the FSM had
neither signed nor returned it; so, she was not eligible for SBP annuity
after all.

5.  She states that she contacted local politicians to see if there was any
way they could help.  Each tried going through the same channels she had,
and was told basically the same thing…without this form, nothing could be
done.  She spent more than four years searching through any and all
paperwork and was able to locate the FSM's time with the service.  She was
unable to find any of the information that she had been told "you should
have a copy of."

6.  She contacted the CAARNG once again and spoke to a young Soldier who
checked the records under the name B_____.  They were able to locate the
FSM's 20-Year Letter, his separation from the service, and points history.

7.  She states that part of the information had been misfiled under an
incorrect spelling of their last name.  The Soldier sent her copies of
these items which
were forwarded with her request.  She implied that it did not sound
feasible, that since she could not find any of these records, that just
possibly, they never received them.  However, had the FSM received the
packet, he would have completed and returned it.  Her spouse served two
tours in Vietnam, completed more than 23 years of service to his country,
and was awarded several awards from the CAARNG.  She is currently having
financial difficulty since the FSM's death and asks that the Board consider
her request.

8.  The applicant provides a copy of the FSM's 20 Year Letter, a copy of
his retirement points summary, and copies of additional documents, in
support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant and the FSM were married on 28 June 1969.

2.  The FSM's military records show that he enlisted in the CAARNG on
17 March 1973, as a combat engineer, in military occupational specialty
(MOS), 12B, in the pay grade E-5, with prior military service.  He was
promoted to staff sergeant (SSG/E-6) effective 14 November 1973.

3.  The FSM continued to serve until he was honorably discharged from the
CAARNG on 16 March 1989, in the rank of SSG.  The FSM was transferred to
the USAR Control Group (Retired).

4.  On 30 March 1989, the State Adjutant General, notified the FSM that he
had completed the required years of service to be eligible for retired pay
on application at age 60 (20-Year Letter).  His letter indicated a Survivor
Benefit Plan Summary was enclosed.  This document is not available for the
Board's review.

5.  The FSM died on 7 August 2001.

6.  The FSM's Statement of Retirement Points, dated 19 September 2005,
shows that the FSM had completed 22 years, 8 months, and 11 days of
qualifying service for retirement purposes.

7.  The applicant provided several additional documents, such as a
newspaper article, a copy of a letter from his United States Senator
congratulating him on


having been awarded the Medal of Valor from the Governor of the State of
California.

8.  The Chief, Administrative Services, CAARNG, informed the ABCMR that
they were unable to locate an SBP election form for the FSM.

9.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (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 were
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 were deducted from the annuity.
Under the law in effect at the time the FSM's 20-Year Letter was issued, a
member's failure to make an RCSBP election was treated as a deferral of the
election until age 60.

10.  Title 10, U. S. Code, section 12731(a) states that a person is
entitled, upon application, to retired pay if the person is at least 60
years of age, has performed at least 20 years of qualifying service, and
the last six years of qualifying service have been performed while a member
of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the FSM completed 22 years, 8 months,
and 11 days of qualifying service for retired pay benefits, was honorably
discharged from the CAARNG, and transferred to the Retired Reserve.  He was
issued a 20 Years Letter, four days after his discharge, which indicated an
SBP summary was enclosed.

2.  The FSM died on 7 August 2001, 12 days prior to his 55th birthday.

3.  The applicant contends that the FSM's records were either lost or
misfiled and only received copies of some of the missing documents.  She
was informed by St. Louis that she was eligible for survivor benefits.  She
asked what she needed to do to begin the process.  She faxed supporting
documents and was informed that she should have a copy of the FSM's 20-Year
Letter and various other forms.  However, one year prior to the FSM's
passing, their business burned to the ground destroying several years of
personal papers.  The applicant was therefore unable to provide any
evidence showing that the FSM elected RCSBP coverage.

4.  A review of the FSM's records failed to reveal an SBP Election
Certificate, such as a DD Form 1883.  The CAARNG was also unable to locate
an SBP Election Certificate for the FSM.

5.  The overall evidence shows that attempts were made by the applicant to
locate the required documents but to no avail.  There is no evidence, and
the applicant has provided no evidence, to show that the FSM elected to
enroll his spouse in SBP.  Without affirmative proof that the FSM elected
RCSBP coverage for his spouse, there is no legal basis to grant the
applicant relief.  Unfortunately, she is not entitled to be granted
survivor benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MKP__  __EF____  ___RR__  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.



                                  ______Margaret K. Patterson___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004255                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061109                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19890316                                |
|DISCHARGE AUTHORITY     |AR NGR 600-200 para 8-26X               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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