PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 December 2000                   
	DOCKET NUMBER:   AR2000039907

	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. James P. Huber		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Kenneth L. Wright		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, in effect, 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).

3.  The applicant states that the FSM did complete, sign, and mail the Survivor Benefit Plan Election Certificate, DD Form 1883 on time.  His sister acted and signed as the witness and several members of the family went with him to the post office to mail the forms.  She provides several sworn affidavits from these members of the family as evidence.

4.  The FSM’s military records show that he was born on 16 September 1950.  He entered the U. S. Army Reserve as a commissioned officer on 31 May 1972.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is not available but the Army Reserve Personnel Command (AR-PERSCOM) has stated he was sent his letter on 3 April 1996.  The applicant’s copy of the         DD Form 1883 shows that the FSM elected to participate in the RCSBP for spouse only coverage, option C, full base amount on 26 May 1996.  Her copy of a Reserve Component Supplemental Survivor Benefit Plan Election Certificate (RC-SSBP), ARPC Form 3854, also dated 26 May 1996 shows that the FSM elected to participate in the RC-SSBP for 20 percent coverage.

5.  On 15 August 1999, the FSM died of heart failure due to mitral and aortic valve disease as a consequence of mitral and aortic valve replacement.  The death certificate shows he had had valve disease for four years.

6.  In the processing of this case, an advisory opinion was provided by the Retirements and Annuities Section, AR-PERSCOM.  That office stated that     AR-PERSCOM never received the FSM’s enrollment request and so the applicant’s claim could not be honored.

7.  The applicant rebutted the advisory opinion.

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.  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.

9.  Public Law 102-190, enacted 5 December 1991, created the Supplemental SBP.  

10.  The Army Retirement Services Office’s Survivor Benefit Plan (SBP) Counselor Training Manual briefs the SSBP as a must for uninsurable members. The Training Manual briefs that Congress believed that the government had met its obligation to survivors in part through the provision of Social Security.  SBP provides a survivor 55 percent of a participant’s military retired pay.  SBP, like Social Security, is government subsidized, which is why the after-62 benefit amount drops to 35 percent of the retired pay.  SSBP provides a means to increase the after-62 benefit to 40, 45, 50 or 55 percent of the retired pay.  It is not a government subsidy.  

CONCLUSIONS:

1.  The Board concludes that the applicant has provided sufficient evidence to show that the FSM completed and mailed his RCSBP and RC-SSBP forms within the required 90-day period.  The FSM knew he had heart disease at the time he completed the forms and it would have been reasonable for him to want to protect his family through the RCSBP and the RC-SSBP.  The applicant should not be penalized because the forms were misplaced or lost after they were mailed.

2.  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 on 26 May 1996 the FSM made an RCSBP election of spouse only coverage, option C, full base amount, and an RC-SSBP election for 20 percent coverage and returned the election forms for processing in a timely manner, thereby allowing the applicant to become an eligible annuitant retroactive to 15 August 1999, the date of the FSM’s death.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect all RCSBP costs due.

BOARD VOTE:  

__jph___  __rjw___  __klw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			James P. Huber
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039907	
SUFFIX		
RECON		
DATE BOARDED	20001219	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.