PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 August 2000                   
	DOCKET NUMBER:   AR2000043281

	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. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		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).

3.  The applicant states that the FSM did not receive the required counseling on the RCSBP when the program was established.  They were never given an opportunity to enroll or even knowledge of the program to make an informed decision on enrollment.  She is positive that the FSM would have enrolled in the RCSBP for the full amount of his retired pay.

4.  The FSM’s military records are not available.  Information contained herein was obtained from alternate sources.

5.  The FSM was born on 6 February 1935.  He and the applicant married on    27 April 1957.  On an unknown date he entered the California Army National Guard.  On 21 February 1974, he was notified of his eligibility for retired pay at age 60.  On 11 May 1989, he was transferred to the Retired Reserve in the rank and grade of colonel, O-6.  He died on 9 November 1991 of colon cancer from which he had suffered for the past 15 months.

6.  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.  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).  An Open Season was established from 1 October 1978 – 30 September 1979 later extended to 31 March 1980.

7.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  The NGB stated that neither the FSM nor the applicant were provided a DD Form 1883, Survivor Benefit Plan Election Certificate, or counseled on the plan as required by law.  A review of his personal effects, including military records and civilian documents found no information that he was ever provided an opportunity to enroll in the program.  Without knowledge of its benefits and the lack of opportunity to enroll due to an administrative error, the applicant should be made eligible for the SBP.  The FSM’s death was unexpected and due to cancer.  The NGB believed his widow should not be penalized for her lack of SBP knowledge.

8.  A copy of the advisory opinion was provided to the applicant but she did not respond within the given time frame.
CONCLUSIONS:

1.  The Board acknowledges that a Government error occurred in this case but contends that there is a reasonable belief that the FSM could have overcome the error.

2.  The FSM was a colonel active in the Army National Guard who did not transfer to the Retired Reserve until 1989.  Even though he may not have been counseled on the RCSBP when it was established in 1978, the Board does not find it reasonable to believe that during the period 1978 through 1989 he never heard of the program.  Since the Board finds it reasonable to believe that he knew about the program at some point before he died, the Board concludes that had he been interested in enrolling he would have made inquiries at that time to find out why he was not given the opportunity to enroll in 1978 and to request enrollment as soon as possible.  The Board presumes the FSM knew about the RCSBP but elected to take his chances on surviving to age 60 and enroll in the standard SBP at that time.  

3.  The applicant’s lack of knowledge about the RCSBP is not relevant since spousal concurrence concerning a declination to enroll in the RCSBP is not required.  However, the Board concludes that it would be in the interest of compassion to show that the FSM enrolled in the RCSBP for option B,  beneficiary receives an annuity if death occurs before age 60 but payment of it is delayed until the date of the member’s 60th birthday, full base amount.  This is consistent with the Board’s presumption that the FSM knew about the RCSBP but took his chances on surviving to age 60.  It is also a lesser cost to the applicant than option C would be.

4.  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 enrolled in the RCSBP on 1 October 1978 for spouse coverage, option B, full base amount.

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

3.  That the applicant be paid an annuity based upon the FSM’s election to participate in the RCSBP retroactive to 6 February 1995, the date the FSM would have turned age 60.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__dsj___  __kak___  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Deborah S. Jacobs
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043281	
SUFFIX		
RECON		
DATE BOARDED	20000801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.