RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060009118


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Scott W. Faught               |     |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, entitlement to Reserve Component
Survivor Benefit Plan (RCSBP) benefits based on the death of her deceased
husband, a former service member (FSM).

2.  The applicant states, in effect, that she is not being provided
retirement benefits based on her husband's Reserve Component service.

3.  The applicant provides the following documents in support of her
application:  FSM's Death Certificate; Army National Guard (ARNG)
Retirement Points History Statement; Retired List Orders; Report of
Casualty (DD Form 1300); Separation Document (DD Form 214); Marriage
License and Certificate.

CONSIDERATION OF EVIDENCE:

1.  An ARNG Retirement Points History Statement on file pertaining to the
FSM confirms that he served in the ARNG of Texas through 17 March 2004, and
that he completed a total of 29 years, 1 month, and 20 days of qualifying
service for
non-regular retirement.

2.  On 4 October 1995, the Adjutant General's Department, Austin, Texas,
issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year
Letter) pertaining to the FSM.  This letter notified the FSM that he had
completed the required years of service and would be eligible for retired
pay upon application at age 60.

3.  On 27 October 1995, the FSM completed a Survivor Benefit Plan (SBP)
Election Certificate (DD Form 1883).  In this form, he indicated that he
was not married and he elected Option A (Defer) to confirm he was declining
to make an election at that time.

4.  On 25 April 1996, the FSM married the applicant.  His record is void of
any indication that he notified the Army of this marriage or that he
requested a change to his Option A RCSBP election of 27 October 1995 within
1 year of the marriage.

5.  The FSM continued to serve in an active ARNG status through March 2004.

On 13 November 2003, United States Army Reserve Personnel Command
(ARPERSCOM), St. Louis, Missouri, published Orders Number P11-389688
authorizing the FSM's placement on the Retired List, effective 1 April
2004.

6.  The FSM's date of birth was 26 March 1944, and on 17 March 2004, he
died at the age of 59.
7.  In connection with the processing of this case, an advisory opinion was
obtained from the Supervisor of Retirements and Annuities, Army Human
Resources Command, St. Louis, Missouri (AHRC-St. Louis).  This official
indicates the FSM submitted his application for retired pay at age 60 in
September 2003, and his retirement orders were published on 13 November
2003, with an effective date of retirement of 1 April 2004.  The retirement
data on file at AHRC-St. Louis confirms the FSM married the applicant on 25
April 1997 (sic 1996), at which time he was an active member of the Texas
ARNG.  However, he failed to inform the Army of his marriage and did not
change his RCSBP election.  As a result, the applicant was denied the
applicant's claim because she was not covered under the RCSBP.

8.  On 23 January 2007, the applicant was provided a copy of the
AHRC-St. Louis advisory opinion and given the opportunity to respond to its
contents.  On 23 February 2007, the applicant provided her marriage
certificate, which shows she and the FSM were married on 22 April 1996.
She also requested additional time to rebut the AHRC-St. Louis advisory
opinion.

9.  On 27 February 2007, the applicant was given an extension of the time
she had to rebut the AHRC-St. Louis advisory opinion to 19 March 2007.  To
date, she has failed to reply.

10.  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; (C)  elect that a
beneficiary receive an annuity immediately upon their death if before age
60.  Normally an election, once made, is irrevocable except as provided for
by law.  RCSBP/SBP elections are made by category, and beneficiaries are
not designated by name.  Members electing to defer under Option A remain
eligible to elect SBP coverage at age 60; however, an annuity will not be
payable to beneficiaries if the member dies before age 60.  Members who are
not married at the time the original election is made may enroll a new
spouse within one year of marriage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive RCSBP
benefits based on the death of her husband, a FSM, was carefully considered
and while the denial of her SBP claim was proper under the existing law,
there are equity considerations in this case that support granting relief.


2.  By law and regulation, members electing Option A under the RCSBP remain
eligible to elect SBP coverage at age 60; however, an annuity will not be
payable to beneficiaries if the member dies before age 60.  The law further
allows members not married at the time the original SBP election is made to
enroll a new spouse within one year of marriage.

3.  The evidence of record confirms that on 27 October 1995, the FSM
elected Option A under the RCSBP and chose to defer a decision until age
60.  It further shows that he was still an active member of the Texas ARNG
when he married the applicant on 25 April 1996.  Finally, it confirms the
applicant's retirement was approved for 1 April 2004, but he tragically
died 10 days before reaching age
60 and gaining retirement eligibility.

4.  By law, a retiring service member may not elect less than full spouse
coverage without the written concurrence of his or her spouse.  That is the
law mandates that the retiring service member may not elect less than full
spouse coverage without the written concurrence of his or her spouse.  This
provision of the law is relevant in this case because there is no evidence
to show the applicant signed a written concurrence to the FSM's
hypothetical decision to decline SBP coverage.  Without her concurrence and
assuming he indeed had elected to decline SBP spouse coverage, if he had
lived to his 60th birthday, DFAS would have been required by statute to
apply the default election of SBP spouse coverage at the full base amount.
Therefore, if the FSM had actually lived to age 60, the applicant would
have received the SBP annuity after his death either by virtue of his
outright election of her as beneficiary, or by virtue of the default
election.  The only way she would have not received the SBP annuity is if
she had signed a written concurrence waiving her rights to the SBP.

5.  In view of the facts of this case, absent a written concurrence from
the applicant waiving her rights to SBP coverage, it would be appropriate
and serve the interest of justice to correct the FSM's record to show he
elected RCSBP spouse coverage at full base amount, Option B (RCSBP coverage
if service member dies before age 60, but delay state of annuity payments
until member's 60th birthday), within one year of his marriage to the
applicant.

6.  Further, based on the recommended correction of the FSM's records
contained in the preceding paragraph, it would also be appropriate for the
DFAS to pay the RCSBP annuity to the applicant as the FSM's spouse
beneficiary, with all necessary costs being deducted, effective 26 March
2004, the FSM's 60th birthday.

BOARD VOTE:

___LDS _  __JCR __  __SWF__  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 FSM be corrected by showing
he elected RCSBP spouse coverage at full base amount, Option B (RCSBP
coverage if service member dies before age 60, but delay state of annuity
payments until member's 60th birthday), within one year of his marriage to
the applicant.

2.  That the DFAS pay the RCSBP annuity to the applicant as the FSM's
spouse beneficiary, with all necessary costs being deducted, effective 26
March 2004, the FSM's 60th birthday.




                                  _____Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009118                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/05                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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