RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	15 March 2007  
	DOCKET NUMBER:  AR20060007794 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, as the spouse of the deceased former service member (FSM), requests, in effect, that the FSM's records be corrected to show that he completed an RCSBP (Reserve Component Survivor Benefit Plan) election certificate and that she be granted a Survivor Benefit Plan (SBP) annuity. 

2.  The applicant states, in effect, that upon contacting the Indiana Army National Guard (INARNG) State Headquarters, she was informed there was no record of a DD Form 1883 (Survivor Benefit Plan Election Certificate) on file there or in   St. Louis (U.S. Army Human Resources Command [AHRC]) reflecting an RCSBP election.  She states that according to the former unit personnel specialist, SFC (Retired) J_____ R. A________, the DD Form 1883 was completed with option C selected.  

3.  The applicant provides a copy of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1 July 1971, a copy of the FSM's NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service), a copy of a letter from the personnel specialist, a copy of her marriage certificate with a raised seal, a copy of the FSM's Death Certificate, and a copy of the FSM's retirement orders, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he enlisted in the INARNG on 2 July 1973, as a light weapons infantryman (11B), in military occupational specialty (MOS), 11B, in the pay grade E-2, with prior military service.  His date of birth is 21 July 1950.  He served in the INARNG with a break in service.  He was promoted to master sergeant (MSG/E-8) effective 16 October 1990.

2.  The applicant and the FSM were married on 16 June 1995.

3.  On 18 August 1995, the State Adjutant General, notified the FSM that he had completed the required years of service to be eligible for retired pay on application at age 60 (20-Year Letter).  

4.  The FSM's Statement of Retirement Points, dated 23 September 1996, shows that the FSM had completed 21 years, 09 months, and 09 days of qualifying service for retirement purposes.

5.  The FSM served until he was honorably discharged from the INARNG on 7 November 1997, in the rank of 1SG.  The FSM was transferred to the USAR Control Group (Retired Reserve). 

6.  The FSM died on 24 November 2005.

7.  The applicant provided a copy of a letter, dated 12 December 2005, from a retired SFC personnel specialist.  He stated that he was writing this letter in response to a request concerning the FSM.  The FSM served over 20 years in the military and received his 20-Year Letter from the INARNG in 1995.  He stated that at the time the FSM received his retirement letter, he was the PSNCO (Personnel Staff NCO) for the 1st Battalion, 163rd Field Artillery, INARNG, located in Evansville, Indiana.  As the PSNCO, part of his responsibilities was to assist individuals who had received their 20-Year Letter and advise them of their options when completing DD Form 1883.  

8.  The retired SFC personnel specialist states that upon the FSM’s receipt of his 20-Year Letter and the accompanying DD Form 1883, the FSM came to him asking for assistance in completing the form.  He explained to the FSM what his options were in selecting option A, B, or C and what each option meant for him, his family, and how it affected his retirement once he began to receive it.  He also explained to the FSM that if he selected option A, he would have to have concurrence from his wife.  He stated that he would not need her concurrence because he would be choosing option C.

9.  The retired SFC personnel specialist states that the FSM completed the DD Form 1883 and it was then forwarded to the appropriate headquarters.  He did remember the FSM saying that he had selected option C, to ensure that his wife was cared for, should he pass away prior to receiving his retirement from the military.  The reason that he was so sure of the FSM's selection is that he received his 20-Year Letter during the same time frame and had already selected option C for himself and explained to the FSM that he had made that selection.  He cannot explain what happened to the DD Form 1883 that the FSM completed, but he could assure the Board that he did complete it and he selected option C at the time he completed it.  He requests that the Board honor the FSM's desire to provide the annuity to his wife beginning upon the date of the FSM's death on 24 November 2005.

10.  Information provided by the Defense Finance and Accounting Service (DFAS), on 18 January 2006, revealed that there was no DD Form 1883 on file.

11.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

12.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (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; or         (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Once a member elects either Options B or C, in any category of coverage, that election is irrevocable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant and the FSM were married on 16 June 1995.

2.  The evidence of record shows that the FSM completed 21 years, 9 months, and 9 days of qualifying service for retired pay benefits, was honorably discharged from the INARNG, and transferred to the Retired Reserve, in the rank of 1SG.  He was issued a 20-Year Letter on 18 August 1995.

3.  The FSM died on 24 November 2005, at the age of 55 years, 4 months, and 4 days.  

4.  The applicant contends that upon contacting the INARNG State Headquarters, she was informed there was no record of a DD Form 1883 on file there or at AHRC-St. Louis reflecting an RCSBP election.  

5.  The applicant provided a copy of a letter from a retired SFC personnel specialist who stated that at the time the FSM received his retirement letter, he was the PSNCO for the 1st Battalion, 163rd Field Artillery, INARNG.  As the PSNCO, his job was to provide assistance to individuals who had received their 20-Year Letter and advise them of their options when completing DD Form 1883. 



6.  The retired SFC personnel specialist stated that he had counseled the FSM upon receipt of his 20-Year Letter and the accompanying DD Form 1883.  The FSM's SBP options were explained to him and what each option meant, i.e., A, B, C, and how they affected his retirement once he began to receive it.  The FSM was informed that option A, would require concurrence; however, he stated that he would not need concurrence because he chose option C.  He stated that the FSM completed the DD Form 1883 and it was forwarded to appropriate headquarters.  However, he did remember the FSM saying that he had selected option C, to ensure that his wife was cared for, should he pass away prior to receiving his retirement.

7.  The reason the personnel specialist was so sure of the FSM's election is that he received his 20-Year Letter during the same time frame and he had already selected option C for himself and explained to the FSM that he had made that selection.  He could not explain what happened to the DD Form 1883 that the FSM completed, but he could assure the Board that the FSM did complete it and he selected option C at the time he completed it.  A copy of the personnel specialist's 20-Year Letter and SBP Election Certificate are attached for review.

8.  A review of the FSM's records failed to reveal an SBP Election Certificate, such as a DD Form 1883.  The information provided by the DFAS revealed that there was no DD Form 1883 on file. 

9.  The evidence shows that the personnel specialist provided some evidence of the FSM's intentions and election concerning SBP.  However, nowhere does the retired SFC personnel specialist state that he actually saw the FSM complete an election form or that he himself forwarded the completed form for processing.  This unsworn declaration alone is insufficient proof to grant the applicant a generous SBP benefit.

10.  The ABCMR owes a fiduciary duty to the SPB and its participants to ensure all potential beneficiaries are properly entitled to benefits.  Granting relief in cases such as this based solely upon the 10-year old recollections of a Soldier's interaction with a FSM does not fulfill the ABCMR's obligation to SBP.  However, had the applicant provided some other supporting evidence, such as a copy of the FSM's SPB election form or a statement from the Soldier who signed the FSM's SBP Election as a witness, relief may be appropriate.  Since such additional evidence was not provided, there is no legal basis to grant the applicant relief for survivor benefits under the Reserve Components Survivor Benefit Plan.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LWR___  __MKP___  _REB __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




_____M. K. Patterson_____
          CHAIRPERSON




INDEX

CASE ID
AR20060007794
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070315
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19971107
DISCHARGE AUTHORITY
AR 140-10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.