PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 January 2001                   
	DOCKET NUMBER:   AR2000045320

	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. Luther L. Santiful		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy, 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, 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) for spouse and child coverage, option C.

3.  The applicant states that she is sure the FSM completed a Survivor Benefit Plan Election Certificate, DD Form 1883.  She and the FSM discussed this prior to his attending his retirement briefing and agreed they would take option C because their son had just been born and they would be covered immediately even before he reached age 60.  Just before the FSM died he told her to contact the local National Guard unit and they would assist her in applying for the SBP.  

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

5.  The FSM was born on 6 September 1940.  He entered the U. S. Navy in 1958.  He and the applicant married on 11 June 1966.  He enlisted in the Army National Guard (ARNG) on 7 December 1974.  The FSM’s youngest child was born on 10 July 1985.  On 6 December 1986, the FSM was discharged from the ARNG and as a Reserve of the Army upon completing his term of enlistment.  The National Guard Bureau issued his notification of eligibility for retired pay at age 60 (his 20-year letter) on 12 February 1987.  The DD Form 1883 was apparently attached to the unit endorsement forwarding the 20-year letter to the FSM.  

6.  On 25 April 2000, the FSM died.  

7.  The State of Connecticut Military Department has stated that they have not been able to locate the FSM’s DD Form 1883 and it may have been forwarded to the Army Reserve Personnel Center (ARPERCEN) in 1987 with the rest of his records.  The Army Reserve Personnel Command (formerly ARPERCEN) has stated that the National Archives and Records Administration does not have the FSM’s records.

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.  Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

CONCLUSIONS:

1.  The Board concludes that there is an injustice in this case.

2.  The Board concludes that it would have been reasonable for the FSM to have enrolled in the RCSBP when he received his 20-year letter in 1987.  His infant son had been born in 1985 and it would have been reasonable for him to have wanted to provide such financial protection for his spouse, the applicant, and their young child.  

3.  The Connecticut ARNG states they cannot locate the FSM’s DD Form 1883 and that it may have been forwarded to ARPERCEN with the rest of his records when he was discharged from the ARNG.  However, the FSM’s records cannot be located, either.

4.  There is no evidence of Government error.  However, since the FSM’s family situation at the time he could have enrolled in the RCSBP would have made it reasonable for him to have elected to enroll, it would be in the interest of justice and compassion to correct his records to show that he did enroll, for spouse and child coverage, option C, full base amount.

5.  In view of the foregoing, the applicant’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 concerned elected to enroll in the RCSBP, option C, full base amount, for spouse and child coverage on 1 March 1987 and submitted the DD Form 1883 in sufficient time for processing.

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

3.  That the applicant be paid an annuity based upon the FSM’s election to participate in the RCSBP retroactive to 25 April 2000, the date of the FSM’s death.

BOARD VOTE:  

__lls___  __wtm___  __teo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045320	
SUFFIX		
RECON		
DATE BOARDED	20010123	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.