MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 February 2002
         DOCKET NUMBER: AR2001061173

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John E. Denning		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)

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APPLICANT REQUESTS: That the records of her deceased husband, a former service member (FSM), be corrected to reflect that she and the FSM elected Option C on the Survivor Benefit Plan (SBP) Election Certificate (DD Form 1883) which was completed on 9 October 1990.

APPLICANT STATES: In effect, that her deceased husband, who died on 30 June 2001, was a command sergeant major with the Utah Army National Guard (UTARNG) and that he served in the military for 32 years. She goes on to state that at the time he received his 20-year letter, he received the DD Form 1883 to make his SBP election. She further states that at the time, she believes that he was improperly counseled as to the proper option to select and as a result, she signed the form agreeing with his decision. She has since been informed that it was the wrong option to choose and now, because he died just months before turning 60 years of age, she is left with no SBP entitlements. She also states that as time grew closer for her husband to draw Retired pay, his health steadily declined and she contacted personnel officials of the UTARNG in Cedar City, Utah and explained that her husband was gravely ill and may not reach age 60. The personnel officials sent her a new election form packet and she returned it as directed. Accordingly, she should have been granted SBP benefits because the change of election was made before the FSM’s death. However, on 3 July 2001, just days after her husband’s death, she received a memorandum from the same personnel official advising her that because the FSM had died before changing or making an election, she was no longer eligible for the FSM’s retired pay benefits. She continues by stating that she elected a specific amount of withholding taxes to be made at the time she made the election, which clearly indicates that she expected to receive the benefits and further reinforces her contention that she was not properly advised on the benefits of each option. In support of her application she submits a copy of the FSM’s death certificate, a letter from a personnel officer of the UTARNG that supports her request and her contention that neither she or the FSM were properly advised, a copy of the FSM’s 20-year letter, a copy of the letter notifying her that she was no longer eligible to receive the FSM’s retired pay benefits, a copy of the DD Form 1883 dated 9 October 1990 as well as a copy of the DD Form 2656 (Data for Payment of Retired Personnel) along with notes that accompanied the forms.

EVIDENCE OF RECORD: The FSM's military records were not available for review by the Board; however, the documents submitted by the applicant show:

On 17 September 1990, while the FSM was serving as a sergeant major with the UTARNG, he received a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) indicating that he would be eligible to receive retired pay benefits upon application on 10 November 2001. Along with that letter, he received a SBP Summary, a DD Form 1883, and instructions to complete and return the form no later than 16 October 1990. He was further advised that he should take the time to have each option, as well as the cost, explained to him.
The FSM and the applicant signed the DD Form 1883 on 9 October 1990 and elected Option A, in which they declined to select an option for coverage until age 60. The note contained in the instructions that were contained on the reverse of the form and which explained the options, clearly state that if the retiree did not elect Option B or C at that time, and should die before age 60, the survivors would not receive benefits. There is no indication in the available records to show that the election was ever changed.

The FSM died on 30 June 2001 at the age of 59 years and 7 months of age.

On 3 July 2001, officials of the UTARNG dispatched a memorandum to the family of the FSM informing them that because the FSM had elected Option A on the DD Form 1883, the family members would no longer be eligible for his retired pay benefits because he died before reaching age 60, without changing his election to an option that would have made them eligible at the time of his death. The memorandum also indicated that it was not in the best interest of the family to elect Option A, especially if death should occur before age 60 and opined that possibly, the person doing the counseling did not understand the ramifications of such an election. The applicant was provided a point of contact at the UTARNG and was provided a DD Form 149 to apply to this Board.

On 25 July 2001, officials at the UTARNG provided a memorandum to the Army Review Boards Agency Support Division requesting that the Board favorably consider allowing the applicant to change the option on the FSM’s DD Form 1883. The memorandum, authored by the deputy personnel officer (a lieutenant colonel) opined that the applicant did not understand the ramifications of her election and he believed that she had not been properly counseled. He further explained that because of cases like these, the UTARNG requires any election of Option A or B to be accompanied by a separate memorandum signed from the survivor and a witness. He also opined that he did not believe the FSM and the applicant made a wise election 11 years ago and indicated that it was his belief that it would be in the best interest of the FSM to allow the option to be changed to care for his wife.

Reserve Component SBP (RCSBP) was created on 1 October 1978 to offer survivor protection during gray area service (between time a member qualifies for retirement but not yet age 60 and in receipt of retired pay). It provides, in effect, that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The election made by the member was irrevocable (unless an open season was announced). In those cases where the members elected not to participate in the SBP or to participate at less than the maximum coverage, spousal concurrence is required. Enrollment for Reservists is required within 90 days of receiving their notice of eligibility (20-year letter). Option A, if elected was at no cost to the member since it provided no coverage and no annuity was paid. It allowed the member to attain age 60 before the member elected the rate of SBP he or she desired. Option B, if selected, allowed the beneficiary to receive an annuity if the service member died before reaching age 60, but delayed payment until the member’s 60^th birthday and is less expensive that Option C, the most expensive option that provides an immediate annuity if the member dies before age 60.

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. While the Board is sympathetic to the applicant’s loss of her husband, the facts in this case, based on the evidence submitted with her application, fails to substantiate her claim that she and the FSM were not properly advised in regards to the SBP options available to them at the time.

3. A review of the DD Form 1883 signed by both the applicant and the FSM in 1990, clearly indicates that if the retiree does not elect Option B or C, and should he die before age 60, the survivor would not receive benefits under Public Law 95-397.

4. Although the election of Option A provided no coverage during the gray period, it also did not cost the FSM anything. Only the service member and the spouse can make such a decision to risk not having any coverage until age 60 and there is no evidence presented in this case to suggest that in 1990, that the FSM and the applicant were not aware of the risks associated with their election.

5. While the applicant was eligible to apply for his retired pay benefits when he reached 59 ½ years of age and was entitled to enroll in the SBP prior to reaching age 60, all of these options were contingent on his reaching age 60 and benefits did not accrue until such time as this occurred.

6. The Board also notes that in 1990, when the FSM was provided the DD Form 1883 and was instructed to complete the form and return it, he was also advised to take the time and seek assistance in having each option explained to him as well as the costs associated with each option. The Board finds no basis to believe that the FSM (a sergeant major) would not seek such assistance if he did not understand his options.

7. Although officials at the UTARNG have expressed opinions regarding the election of Option A of the RCSBP, the fact remains that it is an option that is available to service members and in the final analysis, it is the decision of the service member (and spouse), if that option best meets their needs at the time of their election, given the risks associated with such an election. The Board finds no evidence to suggest that the FSM and the applicant were ill-advised of their options.

8. 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

___be___ ___js ___ ___jed___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061173
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/14
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 350	137.0400/chg election
2.
3.
4.
5.
6.