BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090012162 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the widow of the deceased former service member (FSM), requests, in effect, that the FSM's Reserve Component Survivor Benefit Plan (RCSBP) election be changed to include her as a beneficiary.

2.  The applicant states that the FSM died in November 2008.  The FSM stated in his paperwork that he was not married and that he did not know where to contact the applicant.  The applicant contends that she has lived at the same address for 20 years, which is the same address which she shared with the FSM.  The applicant also states that she was separated from the FSM for many years.

3.  The applicant provides, in support of her application, copies of the FSM's State of Mississippi Certificate of Death and their State of Mississippi Marriage Certificate. 

CONSIDERATION OF EVIDENCE:

1.  On 1 September 1977, the FSM enlisted in the Regular Army (RA).  He completed his initial training and he was awarded military occupational specialty (MOS) 76V (Materiel Storage Specialist).  He attained the rank/grade of specialist four (SP4)/E-4 on 1 January 1979.

2.  The marriage certificate provided by the applicant shows that she and the FSM were married on 23 June 1979.


3.  On 24 June 1983, the FSM was honorably released from active duty and transferred to the U.S. Army Reserve.  He had completed 5 years, 9 months, and 24 days of creditable active duty service at that time.  Item 19 (Mailing Address After Separation) of the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his address as "1xx D-----, Gulfport, Mississippi 39501."

4.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 2 October 1998.

5.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 1 February 1999, shows that the FSM was transferred to the Retired Reserve.  His mailing address at the time was in Tacoma, WA.  This form also shows that he had enlisted in the Washington Army National Guard (WAARNG) on 26 March 1985; he attained the rank/grade of sergeant (SGT)/
E-5, and had completed 22 years, 1 month, and 13 days of service for pay.

6.  On 16 February 1999, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) and indicated his election to participate in the RCSBP for children only coverage, option C, full base amount.  The FSM listed his daughter, born on 22 May 1979, and his two sons, born on 19 December 1989 and 23 January 1991.  He stated that he was married, but legally separated, and did not know the whereabouts of his spouse.

7.  The FSM's death certificate shows that he died in Gulfport, MS on 
27 November 2008, at 51 years of age.  The applicant is listed as his surviving spouse.  A person other than the spouse is listed as the informant (possibly his mother).

8.  The applicant indicates her application to this Board that her current address is 4xxx W-------- Avenue, Gulfport, MS 39501.

9.  The Defense Finance and Accounting Service (DFAS), Retired Pay, has no records showing that the FSM has died or that anyone has filed a claim for RCSBP benefits.

10.  A DD Form 1300 (Report of Casualty), prepared on  20 August 2009, shows that the Adjutant General Directorate - West, 1 Reserve Way, St. Louis, MO, made a final report concerning the circumstances and death of the FSM.

11.  Public Law 95-397, the RCSBP, enacted on 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.  At the time, spousal concurrence was not required and 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; or
   
   c.  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If the member dies before reaching age 60, premiums are deducted from the annuity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's RCSBP election should be changed to include her as a beneficiary.

2.  The FSM’s DD Form 1883 clearly shows that it was his intent to provide immediate RCSBP benefits for only his children.  The FSM indicated that he was legally separated from his spouse and did not know where she was located.

3.  The applicant's contention that she had lived for 20 years at the same address in Mississippi which she had shared with the FSM is not controlling because spousal concurrence in RCSBP elections was not required at the time.  The FSM's address on his DD Form 214 effective in 1983 shows an address in Mississippi that is different from the Mississippi address that the applicant uses with this application.  Furthermore, the applicant was living in the state of Washington at the time of his transfer to the Retired Reserve.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  __x______  ___x___  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.



      _________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090012162



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ABCMR Record of Proceedings (cont)                                         AR20090012162



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