PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           17 August 2000                   
	DOCKET NUMBER:   AR2000043279

	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:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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 enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for option B.

3.  The applicant states that a Survivor Benefit Plan Election Certificate (DD Form 1883) was mailed to the FSM at their home at a time he was deployed to Eastern Europe.  She signed the DD Form 1883 for him and returned it in January 1994 with a cover letter stating the FSM was overseas.  She later received notice that she was not eligible for the SBP since the form was not received within 90 days.

4.  The FSM’s military records are not available.  Information contained herein was obtained from documents provided by the applicant.

5.  The FSM was born on 5 November 1948.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 8 February 1993.  Apparently, the RCSBP packet was not included with the letter.

6.  On 23 March 1993, the FSM deployed to Europe for an initial 139 day period, then a 12-day period, then another 139 day period with no break in between (for almost a 10-month deployment).

7.  The Army Reserve Personnel Command (AR-PERSCOM) mailed the RCSBP materials to the FSM, and they were received by the applicant, on 18 June 1993. The 90-day time period for completion of the election form should have expired on 18 September 1993.  On 7 December 1993, AR-PERSCOM wrote to the FSM at his home in Texas that he had not completed sections V and VI of the DD Form 1883 and to please return the original DD Form 1883 as soon as possible.  The applicant completed sections V and VI, signed the FSM’s name, and returned the DD Form 1883 on 13 January 1994. 

8.  On 3 November 1994, AR-PERSCOM notified the applicant that she was ineligible for coverage under the RCSBP as the FSM had not completed the DD Form 1883 within the required 90 days.

9.  On 15 October 1997, the FSM died.

10.  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.

11.  Title 10, U. S. Code, section 1448 provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.

12.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  NGB noted that the FSM received the DD Form 1883 while he was deployed to Eastern Europe.  He did not return from overseas until early 1994.  The applicant, without benefit of required counseling or basic knowledge of the SBP law signed the form, annotated the Army cover letter stating that the FSM was deployed overseas, and returned it to AR-PERSCOM in January 1994.  Although she had been informed in November 1994 that she was not eligible for the SBP because the FSM had not returned the form within the required period, she did not learn until after his death the meaning of the options. NGB recommended that the FSM’s records be corrected to show he enrolled in the RCSBP for option B, allowing the applicant eligibility for payment of the SBP annuity on the date the FSM would have reached age 60.  NGB did not believe the applicant should be penalized for her lack of SBP knowledge.

13.  The applicant concurred in the advisory opinion.

CONCLUSIONS:

1.  The Board concludes that a Government error occurred in this case.

2.  The FSM should have received his RCSBP packet in February 1993, when his 20-year letter was mailed to him and when he might have received it prior to his deployment.  According to AR-PERSCOM, however, it was not mailed to him, at his home address, until 18 June 1993.  At that time the FSM was deployed to Eastern Europe.  

3.  The RCSBP packet was received on 18 June 1993 by the applicant, not the FSM.  The FSM may have completed the DD Form 1883 on 29 August 1993.  His signature is on the reverse side of the DD Form 1883 and the signature is different from the signature in section VI, which the applicant states she signed.  

4.  However, the Board concludes that even if the FSM did complete the DD Form 1883 on 29 August 1993 and declined enrollment in the RCSBP by electing option A, it is clear from the form that the FSM was not properly counseled.  Too many blocks are scribbled through in section II, making it difficult to determine if option A was really what the FSM wanted.  Section III, item 14 shows the FSM’s date of marriage as September 1948, 2 months before he was born.  As noted by AR-PERSCOM, sections V and VI had not been completed and, very importantly, the form had not been witnessed in August 1993.  

5.  Since the Board concludes that whoever completed the DD Form 1883 was not properly counseled, the Board further concludes that it would be in the interest of justice to grant the relief recommended by the NGB.

6.  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 29 August 1993 the FSM made an RCSBP election of spouse only coverage, option B, full base amount, and returned the DD Form 1883 to AR-PERSCOM for processing, thereby allowing the applicant to become an eligible annuitant on the anniversary of the FSM’s 60th birthday.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any RCSBP costs due when she begins to receive the SBP annuity.

BOARD VOTE:  

__svw___  __mhm___  __lds___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Sherri V. Ward
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043279	
SUFFIX		
RECON		
DATE BOARDED	20000817	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.