RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060006196


      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. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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
child coverage.

2.  The applicant states, in effect, when her husband was notified in 1991
of his eligibility for retired pay at age 60, he was single and listed his
sister as the person to receive his RCSBP annuity.  The applicant also
states, in effect, that she and the FSM were married in 1993 and adopted a
son in 2002; however, her husband did not update his records concerning his
marital status or RCSBP election.  The applicant further states, in effect,
that both she and the FSM's sister (i.e., the FSM's current RCSBP
beneficiary) request the entitlement to the FSM's RCSBP annuity be
transferred to the FSM's son.

3.  The applicant provides a copy of a State of Colorado, Certification of
Vital Record, Certificate of Death, Certificate Number SL2673979, issued 7
March 2006; State of Colorado, County of Grand, Marriage Certificate, dated
21 August 1993; Republic of Kazakstan, Taldykorgan City, Civilian Acts
Registry Office, Adoption Certificate, along with the English Translation
of Certificate 1903, Number 0001081, issued 9 November 2001; Republic of
Kazakstan, Taldykorgan City, Civilian Acts Registry Office, Birth
Certificate, along with the English Translation of Certificate 1903, Number
0052134, issued 9 November 2001; and State of Colorado, Colorado Department
of Public Health and Environment, Certificate of Foreign Birth, Certificate
Number SL1793505, issued 11 December 2002.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the Army
National Guard (ARNG) on 1 October 1971 and that he served in support of
Operation Desert Shield/Desert Storm from 28 February 1991 to 24 April
1991.  The FSM's military service records show that he attained the grade
of rank of staff sergeant/ pay grade E-6 and, on 30 September 1991, he was
credited with completing
20 qualifying years for retirement.  On 4 November 1991, the FSM was
honorably discharged from the ARNG after completing 20 years, 1 month, and
4 days total service for pay.  The FSM was transferred to the U.S. Army
Reserve Control Group (Retired Reserve), effective 5 November 1991.

2.  The FSM's military service records contain a copy of a DD Form 1883
(Survivor Benefit Plan Election Certificate), dated 3 November 1991.
Section II (Marital, Dependency, and Election Status) of this form shows
that, at that time, the FSM indicated in Item 6 (Are you married?), "No"
and in Item 7 (Do you have dependent children?), "No".  Item 8 (Check one
of the following to indicate the type of coverage you desire:), Block d
(Natural person with insurable interest (may be elected only if you have no
spouse and/or children)) of this document is marked with an "x"; and, in
Item 9, the FSM indicated an annuity based on the "Full" amount of his
retired pay and "Option C (Immediate Coverage)".  Section VI (Signatures)
of the DD Form 1883 shows that the document was signed by the FSM and
witnessed by a disinterested individual on 3 November 1991.

3.  The FSM and the applicant married on 21 August 1993.

4.  On 12 February 1998, a male child was born in Taldykorgan City,
Republic of Kazakstan.  The birth certificate provided by the applicant
lists G_______ L__ M____ as the father and L___ F____ M____ as the mother.

5.  On 9 November 2001, O_____ S_________, the male child that was born on
12 February 1998 was adopted, with the conferment name of O___ O_____
M____.  The adoption certificate lists G_______ L__ M____ and L___ F____
M____ as the adopting citizens.

6.  The FSM died on 3 March 2006 at the age of 57.  The Certificate of
Death shows, in pertinent part, that the applicant was married to the FSM
at the time of his death.

7.  Public Law 92-425, the Survivor Benefit Plan (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.  Title 10, United States Code, Chapter 73, provides the basic
statutory provisions of SBP law.  This document provides that SBP was
designed to give income protection to the retiree's spouse or former
spouse, their children until they become self-supporting (i.e., until they
are no longer dependents), or to a natural person with an insurable
interest in that person.

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 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.

9.  Title 10, U.S. Code, section 1448 (Application of Plan), provides, in
pertinent part, that a person who is not married and has no dependent child
upon becoming eligible to participate in the SBP, but who later marries or
acquires a dependent child may elect to participate in the Plan.  Such an
election must be written, signed by the person making the election, and
received by the Secretary concerned within one year after the date on which
that person marries or acquires that dependent child.

10.  Army Regulation 15-185 prescribes the policies and procedures for
correction of military records by the Secretary of the Army, acting through
the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3
of this Army regulation provides guidance on who may apply.  It states, in
pertinent part, that depending on the circumstances, a child, spouse,
parent or other close relative, heir, or legal representative (such as a
guardian or executor) of the Soldier or FSM may be able to demonstrate a
proper interest.  Applicants must send proof of proper interest with the
application when requesting correction of another person's military
records.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates that the FSM received his 20-year
letter with the accompanying forms in 1991.  At the time, the FSM was not
married and did not have any dependent children.  The evidence of record
also indicates that the FSM enrolled in the RCSBP for a person with an
insurable interest (i.e., his sister) and elected an annuity based on the
full amount of his retired pay and immediate coverage.

2.  The evidence of record indicates that the FSM never notified DFAS
officials of his marriage to the applicant in 1993, of his adoption of a
son in 2001, nor did he request to change the beneficiary for his RCSBP at
any time subsequent to his initial RCSBP election and prior to his death.

3.  It is logical to presume that had the FSM wished to change his RCSBP
beneficiary from his sister to either his spouse and/or child, he would
have taken action to request such a change.  However, the evidence of
record fails to show that the FSM took the necessary action to change his
RCSBP election from sister to spouse and/or child coverage.  Moreover,
there is insufficient documentary evidence showing that the individual
holding the current interest in the FSM's RCSBP annuity is willing to
relinquish entitlement to her interest in the FSM's RCSBP annuity.
Consequently, the applicant provides insufficient documentary evidence in
support of her claim at this time.

4.  With respect to paragraph 3 (above), the applicant is advised that a
signed and notarized letter from the FSM's sister, specifically stating
that she fully and completely relinquishes entitlement to her interest in
the FSM's RCSBP annuity, is required and must be provided in order for this
Board to reconsider the applicant's request concerning any change in the
FSM's RCSBP.

5.  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

___TAP__  __PBF__  __LMD__  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.




                                  ____Thomas A. Pagan_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006196                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19911104                                |
|DISCHARGE AUTHORITY     |NGR 600-200, Paragraph 8-27v            |
|DISCHARGE REASON        |Eligible for Retirement at Age 60       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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