PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 September 2000                   
	DOCKET NUMBER:   AR2000037734

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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 former spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and child coverage.

3.  The applicant states that when the FSM completed the DD Form 1883, Survivor Benefit Plan Election Certificate he intended to provide for his handicapped son.  That is why he entered his son’s name in section III, item 5.  Due to an oversight of the clerk, however, section II was marked “spouse only.”  The applicant provides a doctor’s statement showing the son was born with apparent macrocephaly.  At age 6 he was determined to have the mental age of a 21-month old child.  At age 36 he was still presenting moderate to severe retardation.

4.  The FSM’s military records show that he was born on 7 April 1943.  After having had prior service in the U. S. Army Reserve and the Regular Army, he enlisted in the Army National Guard on 17 September 1978.  His notification of eligibility for retired pay at age 60 (20-year letter) is undated.  

5.  The FSM completed DD Form 1883 on 4 October 1991 or 1992 (1991 is typed on the front of the form; 1992 on the reverse).  Section II is checked “spouse only” coverage.  However, section III lists only one child, born in 1963.  The FSM had two other children at this time, a daughter born in 1968 and another son born in 1972.

6.  The FSM was discharged from the Army National Guard on 27 January 1997 and transferred to the Retired Reserve.  On 17 October 1999, the FSM died.

7.  On 16 December 1999, the U. S. Army Reserve Personnel Command informed the applicant’s son, in care of the applicant, that the FSM did not provide RCSBP coverage for him.

8.  Public Law 92-245, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.

9.  Public Law 95-397, the Reserve Component SBP, 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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.

2.  The Board concludes that the FSM had intended to provide RCSBP coverage for his handicapped child.  The Board believes the applicant’s contention that the “spouse only” check in section II was an error.  The Board further believes the FSM intended the child’s name in item 5, section III to indicate that he desired the child to be covered by his RCSBP.  

3.  In view of the foregoing, the FSM’s records should be corrected 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 completed DD Form 1883 on 4 October 1991 and elected spouse and children RCSBP coverage, full base amount, option C.

2.  That after the correction noted above is made, the applicant apply to the Defense Finance and Accounting Service (DFAS) for the SBP annuity on behalf of her son.

3.  That the applicant be advised that DFAS will be instructed to collect any RCSBP costs due.

BOARD VOTE:  

__aao___  __mhm___  __tfb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037734	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.