PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 December 2000                   
	DOCKET NUMBER:   AR2000049116

	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. June Hajjar		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Richard T. Dunbar		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 that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

3.  The applicant states that she was never informed that they could participate in the RCSBP.  She did not find out about this program until after the FSM’s death.

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

5.  The FSM was born on 31 December 1938.  On an unknown date, the FSM entered a Reserve Component.  He was promoted to Sergeant First Class, E-7 on 14 December 1969.  On 19 December 1977, the National Guard Bureau (NGB) issued the FSM’s notification of eligibility for retired pay at age 60 (his   20-year letter).

6.  The applicant turned age 60 on 31 December 1998.  He died on 27 January 1999 of cardiac arrest due to pulmonary embolism.  The U. S. Army Reserve Personnel Command (AR-PERSCOM) informed the applicant in August 1999 that since the FSM did not apply for retired pay, there was no authority whereby she could be granted a survivor benefit annuity.

7.  On 5 December 1999, the Adjutant General’s Department, State of Ohio stated that the state could not find a properly executed Survivor Benefit Plan Election Certificate, DD Form 1883, nor did AR-PERSCOM have one on file.  This information appeared to substantiate the applicant’s claim.

8.  In the processing of this case, an advisory opinion was obtained from NGB.  NGB cited Title 10, U. S. Code, section 1448(a) which stated that a reserve component member who receives his 20-year letter and who is married, may not without concurrence of the member’s spouse elect not to participate in the RCSBP, provide an annuity for the spouse at less than the maximum level, or provide an annuity for a dependent child but not for the person’s spouse.  NGB also cited section 1455(b) which states that the member’s spouse shall be informed of the elections available and the effects of such elections.  NGB stated that the applicant and the FSM would have participated in the RCSBP if they had been properly counseled.  Accordingly, she would currently be in receipt of the survivor benefit payment under provisions of option C, immediate annuity.

9.  A copy of the advisory opinion was provided to the applicant for comment.  She concurred with the advisory opinion.

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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  An Open Season was established from 1 October 1978 – 30 September 1979; later extended to         31 March 1980.

11.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  Chapter 2 states that it is the responsibility of each qualified individual to submit his or her application for retired pay using DD Form 108, Application for Retired Pay Benefits.

12.  At the time, section 1448, Title 10, U. S. Code provided that if a person made an election not to participate in the RCSBP, the person’s spouse would be notified of that election.  Spousal concurrence was needed only when a married person elected 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.  The National Defense Authorization Act for fiscal year 2001 amended this section to require spousal concurrence for all RCSBP elections that failed to provide for full spousal coverage.

13.  In the U. S. Court of Claims case of Barber v. United States, decided on        7 April 1982, the Court ruled that an election out of the SBP was not binding unless the statutory requirement that notice of the withdrawal be given to the spouse was satisfied.  This was an Air Force case.  Air Force regulations at the time required that a copy of the notification of declination letter be filed with the service member’s election certificate.  The defendant failed to produce such a letter or other sufficient evidence to show the plaintiff had been notified of the service member’s declination.  Under those circumstances, the Court accepted as true the plaintiff’s allegation that the defendant did not comply with the notice requirement section of the statute and granted the plaintiff’s motion for summary judgment.

CONCLUSIONS:

1.  The Board concludes that the FSM probably was not counseled concerning the RCSBP at the time of its establishment in 1978 (he had received his 20-year letter in 1977).  In addition, although the Board notes that the law requiring spousal concurrence for an election not to participate at all in the RCSBP was not enacted until after the FSM’s death, spousal notification was required.  There is no evidence of record to show that spousal notification was made at the time the FSM would have first been eligible to participate in the RCSBP.  A Court decision later ruled that without a specific letter of notification, a general statement would be insufficient evidence to show the Government complied with the statutory notice requirement.  Therefore, as a matter of equity it would be appropriate to grant the applicant the relief requested.

2.  The evidence of record shows that the FSM did not apply for retired pay.  Without retired pay, there is no authority whereby the applicant could be granted a survivor benefit annuity.  Therefore, it would be appropriate to show that the FSM applied for retired pay on 1 July 1998, 6 months prior to his attaining age 60.

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 concerned elected to participate in the RCSBP, full base amount, option C with spouse coverage on 1 October 1978.

2.  That the records be corrected to show that the FSM applied for retired pay on 1 July 1998 to become effective 31 December 1998.

3.  That the applicant be paid any and all due arrears of retired pay as a result of the above correction.

4.  That the applicant be entitled to an RCSBP annuity based on the above correction effective 27 January 1999, the date of the FSM’s death.

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

BOARD VOTE:  

__jh____  __hof___  __rtd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000049116	
SUFFIX		
RECON		
DATE BOARDED	20001214	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.