MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 April 2002                   
	DOCKET NUMBER:   AR2002067152

	I certify that hereinafter is recorded the record of consideration 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. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Richard T. Dunbar		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the records of his deceased spouse, a former service member (FSM), be corrected to show she enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for option C.

APPLICANT STATES:  That he believes the FSM was not properly counseled concerning the RCSBP options.  She knew what her health condition was and knew she would not live to age 60.  There are errors on the form.  Item 8a, spouse, is checked, then the word “error” is entered with the FSM’s initials.  Item 8c, none, is also checked.  

EVIDENCE OF RECORD:  The FSM's military records are not available.  Information contained herein was obtained from alternate sources.

The FSM was born on.  She and the applicant married on 29 June 1963.  On an unknown date, she entered the Army National Guard.  Her notification of eligibility for retired pay at age 60 (her 20-year letter) is not available.  

On 9 December 1997, the FSM completed a Survivor Benefit Plan Election Certificate, DD Form 1883.  In section II, both items 8a, spouse only, and 8e, none, are checked.  Item 8a is also annotated “error” and the FSM initialed beside the annotation.  Item 9a, whether the annuity would be based on her full or a reduced portion of her retired pay, is not checked.  Item 9c, which option is desired, is not checked.  The FSM signed the front of the DD Form 1883.  The reverse side of the DD Form 1883 clearly explains the three options.  Option B is explained as providing an annuity to begin on the 60th anniversary of the FSM’s birth should she die before that date or on the day after date of death should she die on or after her 60th birthday.  Both the FSM and the applicant signed immediately below the explanation.  On this date, the FSM also completed a Reserve Component Supplemental Survivor Benefit Plan Election Certificate (RC-SSBP) declining coverage under the RC-SSBP.

The applicant signed an additional statement on 31 December 1997, in which the applicant was informed that he was required to concur or nonconcur with the FSM’s RCSBP decision.  He checked that he concurred with her decision to elect option B, indicating that he understood that he would not be entitled to any retirement annuity or any other benefits if the FSM should die before age 60.

The FSM died on 13 April 1999.

By letter dated 19 November 1999, the U. S. Army Reserve Personnel Command (AR-PERSCOM) informed the applicant that they discovered a DD Form 1883 in the FSM’s RCSBP file which had been filed on 9 December 1997 and showed she elected option B.
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 the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that election.

Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been made after 1 January 2001.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board acknowledges that there are errors on the DD From 1883.  However, the errors, such as the failure to make an option election, are of the type that would normally have invalidated the DD Form 1883 altogether.  Then, unless the FSM completed another DD Form 1883 within 90 days of receiving her 20-year letter, she would have been barred from enrolling in the SBP until she reached age 60.

2.  For an unknown reason but most likely because the applicant had signed a separate statement “concurring” in the FSM’s election of option B, AR-PERSCOM accepted the DD Form 1883 as an option B, spouse only election.
The Board notes that such a concurrence was not required at the time whether the FSM elected option B, option A, or failed to make an election at all.  Only notification, not concurrence, was required if the FSM had elected a reduced amount or an annuity for her children but none for the applicant.

3.  There is no evidence to show the FSM meant to elect option C.  The Board accepts AR-PERSCOM’s acceptance of the DD Form 1883 as showing the FSM elected option B for spouse only coverage but the document should be corrected to clearly show she did so to avoid any problems when the applicant becomes eligible for the annuity in 2005.

4.  In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE:  The Army Review Boards Agency, Support Division will be directed to administratively correct the FSM’s DD Form 1883 to show she elected spouse only RCSBP coverage, full base amount, option B.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __eja___  __rtd___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002067152	
SUFFIX		
RECON		
DATE BOARDED	20020411	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.