MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 June 2002
	DOCKET NUMBER:   AR2002071578

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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:  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 C, full base amount, spouse only coverage.

APPLICANT STATES:  That, first, she made a mistake when she signed a blank Survivor Benefit Plan Election Certificate, DD Form 1883, trusting the FSM to complete it accurately.  Second, she believes he mistakenly marked option A, because elsewhere he checked that he wanted spouse coverage, full base amount.  Third, the witness on the form was her 12-year old nephew.  She acknowledges their mistakes but they did not expect the FSM to die at such a young age, of a brutal murder, leaving her with four children, two of them still in high school.

EVIDENCE OF RECORD:  The FSM's military records show:

That he was born on 14 December 1958.  After having had four years of prior active duty, he entered the U. S. Army Reserve on 29 April 1984.  He last reenlisted on 25 April 1999 for 6 years for his Troop Program Unit assignment at Fort Shafter, island of Oahu, HI.  He was promoted to Sergeant Major, E-9 on   13 October 1995 and was appointed a Command Sergeant Major around April 2000.  

The FSM’s notification of eligibility for retired pay at age 60 (his 20 year letter) is dated 28 March 2001.  On 12 May 2001, he completed a DD Form 1883.  In section II, item 8a he checked that he desired spouse only RCSBP coverage, in item 9a that he desired to have the annuity based on the full amount of his retired pay, and in item 9c that he desired option A.  In section VI, the form was witnessed by Barnare M___.  The applicant signed the form on the reverse.

The FSM died on 21 February 2002.  

The applicant provides the birth certificate of Barnare M___, the witness to the DD Form 1883.  The witness was born on 13 October 1988.  

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, premiums for options B and C are deducted from the annuity.

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.

The Retirement Services Officer for Hawaii is located at Schofield Barracks on Oahu.

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.  There is no evidence of Government error in this case.  The FSM was a senior noncommissioned officer who was in a Reserve unit and so should have had ready access to an SBP counselor either in his unit or at Schofield Barracks, HI.  It appears he negligently failed to obtain any counseling prior to completing the DD Form 1883, resulting in his completing the form with several errors on it.  He asked his spouse, the applicant, to sign a blank form; he had a relative, who was a minor, act as witness to the form; and he contradicted his intention to provide for spouse coverage by checking option A.  

2.  As the FSM was a Command Sergeant Major, there can be little doubt that he understood exactly where he could turn for guidance and counseling concerning the RCSBP and the proper completion of the DD Form 1883 and that he understood the importance of making proper and informed decisions.  Tragically, his negligence and decision served his family poorly.  It is not clear from the DD Form 1883 whether the FSM mistakenly checked option A or intended to indicate his desire to make his spouse, the applicant, his beneficiary upon reaching age 60 when he would make his deferred election.  However, since he had the applicant sign the form, whose signature was not required if it was his intent to elect coverage (rather than defer coverage), then presumably he deliberately checked option A and only meant that he would make his spouse the beneficiary at age 60.  

3.  As a general matter, the law will not entertain a complaint that a binding legal instrument is void merely because the complaining party asserts that he or she signed the document in blank.  Affixing a signature to a binding instrument carries a special legal significance that is not easily undermined.  The applicant signed a blank DD Form 1883 at her peril and in essence appointed the FSM as her agent, concurring in whatever election he chose to make.  In addition, the fact that a minor nephew served as witness to the election does not per se void the election.  

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __RWA__  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002071578	
SUFFIX		
RECON	2002/06/20	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.