RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 January 2006
      DOCKET NUMBER:  AR20050005894


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 that the records of her deceased spouse, a
former service member (FSM), be corrected to show he enrolled in the
Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states the Army failed to properly notify either the FSM
or her that they had an opportunity to add her as a beneficiary.  On 17
March 1989, the FSM was sent his 20-year letter (notification of
eligibility to receive retired pay at age 60) by certified mail.  According
to the certified mail receipt, the FSM did not "sign for it" and there is
no proof he ever received it.  The letter stated that, if he did not make
an RCSBP election within 90 days of receipt of the letter, he would not be
allowed to obtain SBP coverage until he applied for retired pay at age 60.

3.  The applicant states the statute, however, allows a person who marries
after becoming eligible to participate in the SBP to make such an election
within one year of the marriage.  They married on 12 August 1989.  The FSM
was eligible to elect spouse coverage until 12 August 1990, yet he was
incorrectly informed by the Army he had no right to do so until he reached
age 60.  Unfortunately, he died prior to turning age 60.  Had they been
correctly informed that a spousal election could have been made within one
year of their marriage, they would have done so.  Additionally, she would
never have consented to "no spousal coverage."

4.  The applicant provides their marriage certificate; the FSM's death
certificate; a document from the State of Maine Probate Court dated 22
December 1998; a Chronological Statement of Retirement Points; the FSM's 20-
year letter; a certified mail receipt; an 8 December 1989 letter from the
U. S. Army Reserve Personnel Center (ARPERCEN); a 10 December 1999 letter
from her Senator's office; letters dated 17 March 2004 and 10 August 2004
from the Maine National Guard; and a 13 August 2004 letter from the U. S.
Army Human Resources Command – St. Louis.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 7 April 1942.  He was commissioned on 13 June 1964.
After having had served on active duty, he was released from active duty on
      6 March 1968.

2.  The FSM's 20-year letter is dated 17 March 1989 and indicated a DD Form
1883 (Survivor Benefit Plan Election Certificate) and more detailed
information on the RCSBP was enclosed.  The marriage certificate provided
by the applicant indicates the FSM was divorced at that time.  The 20-year
letter was sent by certified mail.  The certified mail receipt indicates
the applicant (not the FSM) signed for the 20-year letter on 8 April 1989.

3.  The FSM did not return the DD Form 1883.  By letter dated 8 December
1989, ARPERCEN informed him they had not received his DD Form 1883, but he
remained eligible to elect into the standard SBP when he turned age 60.

4.  The FSM and the applicant married on 12 August 1989.

5.  On 16 June 1991, the applicant was promoted to Colonel, O-6.

6.  Effective 15 September 1995, the applicant was transferred to the
Retired Reserve due to unit inactivation.

7.  The FSM died on 23 June 1998 at age 56.

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 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; (C)  elect that a
beneficiary receive an annuity immediately upon their death if before age
60.  Spousal notification was required only if the member elected to
participate in the RCSBP for less than full spouse coverage.  Before the
law was amended as noted below, a member must have made 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.  In other words, failure to elect an
option resulted in the default election of option A.

9.  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.  The law is applicable to cases where 20-year
letters have been issued after 1 January 2001.  In other words, failure to
elect an option now results in the default election of option C.

10.  Public Law 101-189, enacted 29 November 1989, established an Open
Season to be conducted 1 October 1991 through 30 September 1992 (later
deferred to 1 April 1992 through 31 March 1993).  Extensive publicity was
given in Army Echoes and other Army publications such as the Army Times.

11.  Title 10, U. S. Code, section 1448(a)(5) provides 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 SBP.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the Army failed to properly notify
either the FSM or her that they had an opportunity to add her as a
beneficiary and that there is no proof the FSM ever received his 20-year
letter have been considered.
2.  The available evidence of record shows the applicant signed for the
FSM's   20-year letter.  The Board presumes the applicant would have given
it to the FSM.

3.  The FSM's 20-year letter indicated detailed information concerning the
RCSBP was included.  What type of "detailed information" was provided is
not available.  In the absence of evidence to the contrary, it is presumed
the provisions of Title 10, U. S. Code, section 1448(a)(5) were included in
the detailed information.

4.  In any case, the FSM was a Colonel actively participating in a Reserve
unit.  When he married the applicant in August 1989, he had a
responsibility to himself, and he had the unit resources available, to
discover what financial protections might be available since his marital
status had changed.

5.  Furthermore, Congress declared an SBP Open Season in November 1989.
Extensive publicity was given in various Army publications the FSM could
have easily availed himself to read.  If he had missed enrolling in the
RCSBP during the first year of their marriage, he could have enrolled
during the Open Season. There is no evidence to show the FSM attempted to
enroll in the RCSBP during the Open Season.

6.  The applicant had no entitlement to "nonconcur" with a decision by the
FSM not to enroll in the RCSBP.  At the time the FSM received his 20-year
letter, he was not married.  By failing to make any election, he had not
forever barred his participation in the SBP for spouse coverage.  Title 10,
section 1448 does not require a spouse's concurrence when the marriage
takes place after the member first becomes eligible to participate in the
SBP.

7.  It was Congress’s intent in establishing the SBP to provide for those
spouses who supported the military member for the majority of his or her
military career.  The applicant was married to the FSM for about 6 years of
his military career.  In the absence of substantiating evidence, it does
not appear that failure to grant the applicant’s requested relief would be
inequitable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__phm___  __rdg___  __rch___  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.




                                  __Patrick H. McGann___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005894                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060124                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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