PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 August 2002
	DOCKET NUMBER:   AR2002073290

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg		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 was killed by a drunk driver six months before his retired pay was to begin.  He was a self-employed taxi driver and had no retirement benefits; therefore, a military career was the answer to their golden years.  She is soon to be 58 years old and the RCSBP annuity will be her only income until Social Security takes effect.  She actually received his first retirement check six months after his death and was told she was entitled to the SBP.  It took two years after his death to finally receive notification that the Survivor Benefit Plan Election Certificate (DD Form 1883) was not completed; however, the Data for Payment of Retired Personnel, DD Form 2656, was and it showed that he enrolled in the SBP.  

4.  The FSM’s military records show that he was born on 3 July 1940.  After having had prior service, he enlisted in the U. S. Army Reserve in 1981.  He married the applicant on 16 June 1984.  

5.  The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is not available.  The U. S. Army Reserve Personnel Command informed the applicant that the FSM was provided a 20-year letter in January 1997 and he did not return the DD Form 1883 within 90 days of his receiving the letter.

6.  The FSM applied for retired pay on 12 July 1999 by completing a DD Form 2656.  In section IX, he checked that he elected spouse only SBP coverage, full base amount.  

7.  The FSM died on 14 January 2000.  Apparently, the Defense Finance and Accounting Service was not notified of his death until after he would have turned age 60 because they sent him a retired check on 1 August 2000.

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 (costs for option C being the more expensive).
CONCLUSIONS:

1.  There is no Government error in this case.  The FSM failed to enroll in the RCSBP when he received his 20-year letter in 1997, at age 57.  It appears he may have felt he would survive until age 60 and would wait until that time to make an election for the standard SBP.  That appears to have been his intent since when he applied for retired pay in July 1999 he did, in fact, elect to participate in the SBP for spouse coverage.  Unfortunately, the FSM died prior to reaching age 60.  Since he never became eligible for retired pay, there is no legal basis for awarding the applicant the SBP annuity.

2.  However, it was clearly the FSM's intent to provide the SBP for the applicant.  It would be compassionate to correct his records to show that he elected to participate in the RCSBP for spouse only coverage, option B (since it was his intent to have the SBP coverage effective upon his reaching age 60), full base amount.

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 the FSM elected to participate in the RCSBP on 1 March 1997 for spouse only coverage, option B, full base amount by completing and returning the DD Form 1883 to the appropriate office where it was received and processed in a timely manner.

2.  That the applicant be paid the RCSBP annuity retroactive to 3 July 2000, the date the FSM would have turned age 60.

BOARD VOTE:  

__MKP__  __CJP __  _ _HBO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR2002073290	
SUFFIX		
RECON		
DATE BOARDED	2002/08/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.