PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 August 2002
         DOCKET NUMBER: AR2002073900


         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:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret V. Thompson		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.

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2. The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show he completed his Survivor Benefit Plan Election Certificate, DD Form 1883, within the 90-day window.

3. The applicant states through counsel, in effect, that the FSM did complete and forward his DD Form 1883 early in 1987 but it was lost either by the U. S. Army Reserve Personnel Center (now the U. S. Army Reserve Personnel Command (AR-PERSCOM)) or the U. S. Postal Service. AR-PERSCOM claims to have sent a letter dated 12 March 1992 to the applicant informing her that the FSM failed to make a Reserve Component Survivor Benefit Plan (RCSBP) election within 90 days; therefore, she was ineligible for any benefit under this plan. The letter was not signed and the applicant did not receive it. AR-PERSCOM has not provided a U. S. Postal Service signed receipt for said letter. It is reasonable to assume that a letter of such importance would not have been mailed without being signed by proper authority and further substantiates her claim that she never received the letter. The Board, in a case considered on 14 December 2000 (docket number 2000049116), ruled in that applicant’s favor (that failure to notify the spouse was grounds to award the SBP) and the same principle is applicable in this case.

4. The applicant provides supporting evidence including two affidavits from the FSM’s former supervisor at the time he received his 20-year letter, now Colonel H___, and from another supervisor, now retired Colonel G___. In his affidavit, Colonel H___ swears that, after the FSM got his 20-year letter, they discussed the options available and the FSM disclosed that his plan was to take option C. He indicated that he had already filed the election. In the other affidavit, Colonel (retired) G___ swears that around September 1998 he and the FSM shared a golf cart for about 4 hours during a unit golf event and at one point discussed retirement. The FSM shared with him that he had elected option C and they discussed the importance of taking care of spouses. Colonel (retired) G___ believed that there was no doubt that the FSM believed he had processed a DD Form 1883 and elected option C.

5. The FSM’s military records show that he was born on 21 February 1944. After having had prior enlisted service in the Army National Guard, he was commissioned in the Army National Guard in August 1968. He and the applicant married on 10 September 1976. He transferred to the U. S. Army Reserve around August 1984. He was promoted to major on 2 November 1986. His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 9 February 1987 and was mailed to the applicant’s current address. The letter included detailed information concerning participation in the RCSBP and instructed him he had 90 days in which to elect to participate in the RCSBP or remain uncovered until he became 60 years old.

6. On 12 March 1992, the U. S. Army Reserve Personnel Center sent a letter to the applicant, at her current address, informing her that the FSM failed to return the DD Form 1883 within 90 days.

7. On 13 September 2000, the FSM attempted to complete and have processed another DD Form 1883. He died on 7 April 2001 of cancer.

8. Board case docket number AR2000049116 references the U. S. Court of Claims case of Barber v. United States. This was an Air Force case. Air Force regulations at the time required that a copy of the notification of declination (to enroll in the SBP) letter be filed with the service member’s election certificate. The defendant failed to produce the 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.

9. 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 60^th 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.

CONCLUSIONS:

1. The court case of Barber v. United States is not applicable in this case as the letter notifying the applicant was produced by the Government. The fact the file copy of the letter was not signed is not unusual and is immaterial. The fact it was not sent by certified or registered mail is immaterial and merely reflects a Government cost-cutting measure. It is regrettable that mail sometimes gets lost but that should not have precluded the FSM, as a field grade commissioned officer, from retaining a copy of the DD Form 1883 for his own use and the use of his widow.

2. Nevertheless, the applicant provides two sworn statements from the FSM’s former supervisors swearing that the FSM did complete a DD Form 1883 in a timely manner. The affidavit from Colonel H___ is particularly persuasive since he was the FSM’s supervisor at the time and he states they discussed the RCSBP when the FSM received his 20-year letter. The Board accepts his affidavit as sufficient evidence to show the FSM did complete the DD Form 1883 within the required 90-day window, enrolling in the RCSBP for spouse coverage, full base amount, option C.

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 completed a DD Form 1883 on 1 March 1987, electing to participate in the RCSBP for spouse only coverage, full base amount, option C and that the form was received and processed by the appropriate office in a timely manner.

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

3. That the applicant be paid an annuity based upon the FSM’s election to participate in the RCSBP retroactive to 7 April 2001, the date of his death.

BOARD VOTE:

__RJW__ ___LE___ __MVT__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Raymond J. Wagner___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073900
SUFFIX
RECON
DATE BOARDED	2002/08/08
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	137.02
2.
3.
4.
5.
6.