PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           2 December 1999                   
	DOCKET NUMBER:   AR1999028306

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP), option C, immediate coverage.

3.  The applicant states that the FSM transferred from the Army National Guard (ARNG) to the U. S. Army Reserve (USAR) on 1 April 1986.  The first time he was contacted concerning the RCSBP was in September 1986 and that contact was from the Guard, not the USAR.  The DD Form 1883 was completed on          12 November 1986 and the FSM elected option C as shown by the FSM’s copy of the form.  After the death of the FSM, the Minnesota ARNG was assisting her with her SBP claim when the Army Reserve Personnel Center (ARPERCEN) produced the original DD Form 1883.  This form was the same as the applicant’s copy except the dates had been lined out and “31 Mar 86” entered, her initials are beside two of the dates and the FSM’s initials besides the third date, and the option block “C” has been whited out and option B checked instead.

4.  The FSM’s military records show that he enlisted in the ARNG on 3 November 1965 and accepted a commission in the ARNG on 30 June 1968.

5.  On 31 January 1986, the National Guard Bureau forwarded the FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) through the Adjutant General, Minnesota to the FSM.

6.  On 19 March 1986, the FSM tendered his resignation from the Minnesota ARNG to be effective 31 March 1986 and requested transfer to the USAR effective 1 April 1986.  His request was approved and he was transferred to the USAR 1 April 1986.

7.  On 8 September 1986, a member of the Minnesota ARNG forwarded a DD Form 1883 to the FSM requesting he complete it, he and the applicant sign it, and return it so it could be witnessed.  The FSM would then be sent a copy of the DD Form 1883 and his 20-year letter.

8.  The FSM apparently completed the DD Form 1883 on 12 November 1986, electing spouse only coverage, option C.  

9.  Apparently the DD Form 1883 was unacceptable for processing, possibly because it was dated more than 90 days after the date of the 20-year letter.  In December 1987, the Minnesota ARNG attempted to make the form acceptable by having the FSM and the applicant sign statements concerning his SBP coverage that were then dated March 1986.  The original form was then changed by whiting out option C and checking option B, deleting the date in section VI and entering “31 Mar 86 D. L. T.,” and deleting the dates on the reverse and entering “31 Mar 86 R T” on both the FSM’s and the applicant’s signature lines.
10.  The FSM died on 13 April 1999.

11.  Public Law 95-397, the Reserve Component SBP (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.  A member must make 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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

12.  On 29 November 1999, the Deputy Military Personnel Management Officer, Department of Military Affairs, Minnesota Army and Air National Guard informed this office that the dates on the FSM’s DD Form 1883 were probably changed by the Minnesota ARNG in an effort to make it acceptable for processing.  She stated that the option was probably changed because at the time it was their policy to encourage soldiers to elect option B instead of option C because of the cost difference.

CONCLUSIONS:

1.  The Board concludes that the FSM did not receive his notification of eligibility to receive retired pay at age 60 until 8 September 1986.  He then had 90 days from that date to make his RCSBP election.  He elected to participate in the RCSBP for spouse only coverage, option C on 12 November 1986.  The Board concludes the FSM returned the DD Form 1883 for processing within 90 days after receipt of notification as required.

2.  The Board presumes that the DD Form 1883 was rejected for processing because it was completed and signed later than 90 days after 31 January 1986, the date of the 20-year letter.  The dates on the DD Form 1883 were changed in order to make it appear the form was prepared within 90 days after the date of the 20-year letter.  For an unknown reason but possibly because it was State policy, option C was changed to option B at the same time.

3.  The requirement is for a member to make his election within 90 days of receipt of his 20-year letter; not within 90 days of when the 20-year letter is dated.  The Board notes that the Minnesota ARNG’s note dated 8 September 1986 states the FSM would be sent his 20-year letter after he returned his DD Form 1883.  The Board concludes the FSM met the requirement of the law in November 1986 and the DD Form 1883 completed 12 November 1986 was a valid election.  However, at this point correcting his records to show he elected RCSBP spouse coverage, option C on 31 March 1986 would be appropriate.

4.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM elected to participate in the RCSBP on         31 March 1986, full base amount, spouse only, option C.

2.  That the applicant be paid an SBP annuity retroactive to 13 April 1999, the date of the FSM’s death.

3.  That the applicant be advised the Defense Finance and Accounting Service will be instructed to collect any RCSBP costs at the option C rate.

BOARD VOTE:  

__svw___  _vbc____  _bje____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Sherri V. Ward
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028306	
SUFFIX		
RECON		
DATE BOARDED	19991202	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.