RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 April 2007
      DOCKET NUMBER:  AR20060013293


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 receive a Reserve Component
Survivor Benefit Plan (RCSBP) annuity based on the death of her first
husband, a former service member (FSM).

2.  The applicant states, in effect, she is the only survivor and should be
the beneficiary for the FSM and receive retirement pay annuities.  She
states the FSM passed away at age 54 and would have been entitled to
retired pay at age 60.  She claims that as his widow, she should now be
entitled to compensation. She also states that she remarried; however, she
is again a widow and receives none of her husband's income.  She states she
needs this compensation to meet present expenses.

3.  The applicant provides the following documents in support of her
application:  Birth Certificate; Marriage Certificate (FSM); Death
Certificate (FSM), Marriage Certificate (Subsequent Husband); and Death
Certificate (Subsequent Husband).

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he was a Reserve commissioned officer in the
rank of second lieutenant on 19 June 1956, and immediately entered the Army
National Guard (ARNG).

2.  On 1 November 1972, the National Guard Bureau (NGB), Washington D.C.
issued the FSM a Notification of Eligibility for Retired Pay at Age 60.
The FSM was informed that he had completed the required years of service
and was eligible for retired pay upon application at age 60.

3.  On 30 June 1976, the applicant was transferred to the United States
Army Reserve Control Group Reinforcement and on 29 December 1977, he was
transferred to the Retired Reserve based on the completion of 20 years of
qualifying Reserve Component (RC) service.

4.  On 4 May 1986, the applicant and FSM were married, and on 12 August
1988, the FSM died at the age of 54.

5.  There is no indication in the FSM's record that he made or attempted to
make an RCSBP election in the little over two years that passed between his
marriage to the applicant and his death.




6.  On 4 October 1988, the applicant received a letter from the Office of
The Adjutant General, State of Indiana, which informed her that although
the FSM confirmed he received a RCSBP packet in 1979, he never returned a
Survivor Benefit Plan (SBP) election.  The applicant was also advised that
as a result of the FSM not making an election at that time, he was
ineligible for the RCSBP until he reached age 60, at which time he would
have had another opportunity to enroll in the SBP.

7.  On 9 July 1989, the applicant remarried, and on 31 May 2006, her
husband died.

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; (C)  elect that a
beneficiary receive an annuity immediately upon their death if 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 1988 death of the FSM was carefully considered.
However, in spite of her unfortunate financial situation due to the loss of
the husband she subsequently married, there is insufficient evidence to
support her claim.

2.  The evidence of record confirms the FSM received an RCSBP packet in
1979, subsequent to the enactment of Public Law 95-397.  It also shows he
failed to return the packet and/or to make an SBP election at that time.
Further, there is no evidence of record, or independent evidence provided
by the applicant, showing that the FSM ever attempted to enroll in the SBP
within a year of his marriage to the applicant, as is required by law.

3.  The FSM's record is also void of indication that the FSM ever tried to
enroll in the SBP to provide coverage for the applicant at anytime in the
little more than
2 years he and the applicant were married prior to his death.  Thus, absent
any evidence showing it was the intent of the FSM to provide SBP coverage
for the applicant, there is an insufficient evidentiary basis to support
granting the requested relief.
4.  Given the short length of the marriage between the applicant and FSM,
the entirety of which was subsequent to the completion of the FSM's service
and based on the applicant's remarriage and the length of that subsequent
marriage, equity exceptions that might otherwise be considered would not be
appropriate in this case.  SBP is a Government insurance program that is
funded by the premiums of the retirees that participate.  There is no right
to SBP coverage and to be eligible, retirees must be enrolled in the
program to protect the financial integrity of the fund.  The ABCMR extends
coverage in only limited circumstances.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __TMR __  __RMN  _  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.




                                  _____John T. Meixell____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060013293                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/17                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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