RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         18 April 2006
      DOCKET NUMBER:  AR20050008708


      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. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John G. Heck                  |     |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, the son of a deceased former service member (FSM),
requests, in effect, that the FSM's Reserve Component Survivor Benefit Plan
(RCSBP) election be changed to spouse coverage, option B.

2.  The applicant states his mother applied for the SBP annuity upon what
would have been the FSM's 60th birthday.  She was denied because she and
the FSM signed the DD Form 1883 (Survivor Benefit Plan Election
Certificate) deferring the election until he turned age 60.  The DD Form
1883 was signed during a time the applicant's mother was under medical care
and taking medication that would legally prevent her from making any
decisions on her own.  She did not have the opportunity to make that
decision on her own and, up to the date of receiving the denial letter, she
did not even realize that the signature took place.

3.  The applicant states the FSM was going through his retirement process
in which he was making decisions for his future along with the future of
his spouse, the applicant's mother.  The FSM directed the applicant's
mother to sign the papers at a time when she was mentally and emotionally
incapacitated to make any proper decision.

4.  The applicant provides an undated letter from the applicant's mother to
the   U. S. Army Reserve Personnel Command; a copy of his parents' marriage
certificate; the FSM's death certificate; a 13 June 2002 letter from his
mother's doctor; the FSM's retirement orders; an Annuity/Survivor
Information form dated 27 May 1998; and the FSM's DD Form 1883.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 11 June 1940.  He enlisted in the Regular Army in
1958.  He and his spouse married on 2 March 1962.  He was appointed a
second lieutenant in the Army National Guard on 1 July 1966.

2.  The FSM's notification of eligibility for retired pay (his 20-year
letter) is not available.  On 5 November 1991, he completed a DD Form 1883
and checked that he deferred his RCSBP election until he reached age 60.
The FSM and his spouse signed the reverse of the form, which explained each
option listed in item 9c and noted that, if the FSM did not elect Option B
or C at that time and should die before age 60, the survivors would not
receive RCSBP benefits.

3.  By letter dated 13 June 2002, the widow's doctor explained that the
widow had been hospitalized in the mid-1980s for Major Depression with
Psychotic features and readmitted for a relapse of her Major Depressive
features in         the early 1990s.  She has been maintained as an out-
patient on her anti-depressants, as well as an anti-psychotic at low dose,
and has been able to work back up to employment.

4.  The FSM died on 11 December 1997 at age 57.

5.  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.  Only spousal notification, not concurrence, was required.

6.  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.

DISCUSSION AND CONCLUSIONS:

1.  The fact the applicant's mother signed the DD Form 1883 in November
1991, during a time she was under medical care and taking medication that
legally prevented her from making any decisions on her own, has been
carefully considered.

2.  The concurrence of the applicant's mother was not required for the FSM
to have deferred his RCSBP election.  At the time, the spouse's signature
merely signified that the spouse had been notified of the FSM's decision.
Spousal concurrence was not required until 1 January 2001.  Unfortunately,
the FSM did not live to age 60, when he could have elected to participate
in the standard SBP.

3.  Regrettably, there is insufficient evidence on which to base granting
the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rld  ___  _rr _____  __jgh____  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.




                                  ____Robert L. Duecaster__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008708                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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