RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2007
      DOCKET NUMBER:  AR20070011148


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Ms. Jeanette R. McCants           |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 husband, a
former service member (FSM).

2.  The applicant states, in effect, that her deceased husband was retired
from the United States Army Reserve (USAR) and died on 23 January 2004.
She states that it was her impression that she should receive benefits
under the RCSBP once her husband would have reached age 60.  She claims to
have requested RCSBP benefits six months prior to what would have been her
husband's 60th birthday, and when she contacted the Casualty Assistance
Officer at Fort Polk, Louisiana, she found out that her request was denied.
 She states that after researching the issue, she understands that if her
husband did not participate in the plan at the full amount, she had to
concur with this decision in writing in order to protect her rights, which
in this case never happened.

3.  The applicant further states that the FSM's original Notification of
Eligibility for Retired Pay at Age 60 Letter (20-Year Letter) and Survivor
Benefit Plan Election Certificate (DD Form 1883) were not found in his
records; however, she found copies of his 20 January 1999 20-Year Letter
and an Army Reserve Personnel Command (ARPERSCOM) Letter, dated 22 March
2000, which notified her that the FSM had failed to submit a DD Form 1883
within the prescribed timeframe and that she was therefore not eligible for
the program.  She claims this letter was addressed to her husband's
business post office box and not to their home.  She states that in her
opinion, she should not be denied her rights based on administrative
processing errors of the paperwork.  She claims that since the Army does
not have the FSM's DD Form 1883 acknowledging a reduction in benefits, she
should receive the full amount of RCSBP benefits.  She further states that
it is her understanding that the requirement that she be notified of and
concur with any election to participate in the RCSBP at any level other
than full coverage has existed in law since 1985.  She states that based on
her research, her rights would have been better protected if her husband
and she had been divorced prior to his untimely death.

4.  The applicant provides the following documents in support of her
application:  Self-Authored Statement; FSM's 20-Year Letter; and ARPERSCOM
Letter, dated 22 March 2000.  Expressions of interest in the applicant's
case have also been provided by two Members of Congress.

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he served on active duty in a commissioned
officer status from 15 May 1971 through 14 May 1979, and that he entered
the United States Army Reserve (USAR) in an active status on 16 December
1979.

2.  On 20 January 1999, ARPERSCOM notified the FSM that he had completed
the necessary years of qualifying service to be eligible to receive retired
pay at age 60.  The notification further informed the FSM that he was
entitled to participate in the RCSBP and that by law, he had 90 calendar
days from the date he received the notification memorandum to submit a DD
Form 1883 (Survivor Benefit Plan Election Certificate).  It further
informed him that if he failed to submit the DD Form 1883 within 90 days,
he would not be entitled to RCSBP coverage until he applied for retired pay
at age 60, and his survivors would not be entitled to benefits.  The FSM
was provided a DD Form 1883 and detailed information about the RCSBP with
this notification memorandum.

3.  On 22 March 2000, ARPERSCOM notified the applicant by letter that the
FSM had been notified of his ineligibility for coverage under the RCSBP
based on his failure to complete and return his DD Form 1883 within the 90
day period following his receipt of the RCSBP packet.  As a result, he
could not elect to participate in the RCSBP until he attained age 60 and
applied for retired pay.  It further explained that based on the FSM's
failure to submit his RCSBP election certificate within the 90 day period,
his survivors would not receive an annuity if the FSM's death occurred
prior to age 60.

4.  A Retirement Points History form on file in the FSM's record shows that
he transferred to the Retired Reserve on 2 July 1999, and that at that time
he had accrued 4148 retirement points and had completed 20 years, 6 months
and
14 days of qualifying service for retired pay at age 60.  There is no
indication in the record that the FSM ever attempted to enroll in the RCSBP
subsequent to being notified of the program.

5.  On 23 January 2004, the FSM died at the age of 57.

6.  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.  Under the law in effect at the time, a member was required to make the
RCSBP election within 90 days of receiving the notification of eligibility
to receive retired pay at age 60 (20-Year Letter) or else wait until he/she
applied for retired pay at age 60 and elect to participate in the standard
SBP.

7.  Public Law 106-398, enacted 30 October 2000, required written spousal
consent for a Reserve service member to be able to delay making an RCSBP
election until age 60, and the default election when an election form was
not submitted or is not on file is Option C.  This law is applicable to
cases where the 20-year letter was issued after 1 January 2001.  The law
provided no retroactive provisions for members who received a 20-Year
Letter prior to 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to an SBP annuity based on the
death of her husband, a FSM, was carefully considered.  However, there is
an insufficient evidentiary basis to support granting the requested relief.

2.  The governing law in effect at the time the FSM received his 20-Year
Letter allowed qualified members 90 days from the date of receipt of the 20-
Year Letter to submit a DD Form 1883 to provide an annuity for their
survivors should they die before reaching age 60.  The law also stipulated
that if members failed to make an election within 90 days of receiving
their 20-Year Letter, they must wait until reaching age 60 to make an
election, and that survivors would not receive an annuity if the member
died before reaching age 60.  Under the law in effect at the time, neither
spousal notification nor concurrence was required for a Reservist to delay
a RCSBP election until age 60.  The law requiring spousal concurrence with
a non-participation election was not effective until 1 January 2001, and
this law did not provide retroactive provisions for members who received
their 20-Year Letter prior to this effective date.



3.  The evidence of record in this case confirms that the FSM's 20-Year
Letter and RCSBP packet were prepared and mailed to him on 20 January 1999.
 It further shows that the FSM failed to provide an RCSBP election
certificate within 90 days of receipt of his 20-Year Letter, and that the
applicant was notified of this failure in letter from ARPERSCOM on 22 March
2000.  Although, the applicant indicates the letter was mailed to the FSM's
business address and not to their home, the fact that she possesses the
letter confirms the letter was received and it must be presumed that she
and the FSM were aware of her ineligibility to receive a RCSBP annuity if
the FSM died before reaching age 60.  Even if the applicant had not
received or been aware of the letter, the ARPERSCOM notification of spouses
of non-enrollment elections was only an informational notification as a
matter of policy, and was not a matter of statutory or regulatory
requirement.  Neither failure to actually receive the notification nor
receipt of the notification gave the spouse any basis to contest the non-
enrollment.  The law in effect at the time did not require the applicant's
concurrence with the FSM's decision not to participate in the RCSBP prior
to his reaching age 60.

4.  In view of the fact of this case confirming the FSM did not show any
intent to participate in the RCSBP prior to reaching age 60, and as a
result of his death prior to reaching age 60, the applicant is not entitled
to receive a SBP annuity in accordance with the law in effect at the time.
Further, given the FSM was provided the necessary RCSBP packet in a timely
manner and failed to submit a RCSBP election, and ARPERSCOM's subsequent
notification to the applicant of this failure by the FSM, it appears it was
clearly the intent of the FSM not to provide for an annuity for the
applicant if his death occurred before age 60.  As a result, absent any
evidence of an administrative error in the RCSBP election processing, there
is an insufficient evidentiary basis to grant the requested relief as an
exception to the governing law or policy.

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

__RTD __  __JRM __  __JRP __  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.




                                  ____Richard T. Dunbar__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070011148                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/DD                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1800                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]