IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20070016253 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The original applicant who since the submission of his application has died, requested, in effect, that his Survivor Benefit Plan Election Certificate be changed to show he elected Option C (Immediate Coverage) instead of Option C (defer election until age 60) when he completed his election certificate on 25 January 2002.  In view of his passing, his widow will be considered the applicant.

2.  The deceased former service member (FSM) stated, in effect, that he would not make it to the age of 60, only to the age of 47.  He added the reason for the change was that he had cancer and he had until the end of the year, or less, and that he wanted the applicant to have his retirement.

3.  In support of his application, the FSM provided a copy of a Memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60, dated 21 December 2001.  In a follow-up DD Form 149, Application for Correction of Military Record, the FSM's widow, now the applicant, submitted a copy of the FSM’s DD Form 214, Certificate of Release or Discharge from Active Duty, with a separation date of
20 September 1984; and a copy of his Certificate of Death, dated 6 December 2007.

CONSIDERATION OF EVIDENCE:

1.  The FSM requested correction of an alleged error that he made on 25 January 2002, when he completed his DD Form 1883, Survivor Benefit Plan (SBP) Election 
Certificate.  He had been notified he had completed the required years of service to be eligible for retired pay, upon application at age 60, in accordance with the provisions of Title 10, United States Code, Chapter 1223.

2.  The evidence shows that the FSM enlisted in the Regular Army on 13 February 1979 and served on active duty until 20 September 1984, when he was honorably discharged in the rank and pay grade of Sergeant, E-5, at the expiration of his term of service.

3.  After being discharged from the Regular Army, the FSM served in the Indiana Army National Guard.  He received notification of his eligibility for retired pay at age 60 (20-Year Letter) on 21 December 2001.

4.  On 25 January 2002, the FSM executed a DD Form 1883 SBP Election Certificate.  He indicated that he was married with one child, a son, and elected Option A (defer SBP decision until age 60).  The applicant concurred with his choice of Option A and affixed her signature in the appropriate space beneath his on the reverse of the form.

5.  In the block immediately above Section III, Family Information, on the DD Form 1883, is a notice to the person making the SBP election, and to his or her potential beneficiary, which states, "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."

6.  In the last two lines of the first block on the reverse of the form, which provides an explanation for the available options, appears the following:  "NOTE: If retiree does not elect option B or C at this time, and should die before age 60, the survivors will not receive benefits under Public Law 95-397."

7.  The evidence shows the FSM was born on 26 March 1960 and would not have turned age 60 until 26 March 2020 and become eligible, upon application, to receive retired pay.  The evidence also shows he died on 5 December 2007 at the age of 47.

8.  In the follow-up DD Form 149 submitted by the applicant, she stated, in effect, the FSM had requested the change in his retirement to make her his sole beneficiary.  The FSM had spoken to National Guard representatives, who sent papers which he filled out and mailed back.  He didn't receive a response, so he called them and these representatives said they were not sure where the papers 
were.  The applicant concluded, in effect, she felt it was an injustice because the request the FSM made before he passed away was not fulfilled due to papers being lost.

9.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet 60 to provide an annuity for their survivors should they die before reaching age 60.  Elections are made by category, not by name.  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, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the now deceased FSM properly executed his DD Form 1883 on 25 January 2002.  The applicant concurred with his election of Option A to defer making an election to participate in the SBP at that time; however, he remained eligible to make an election for coverage at age 60.  Both the FSM and his spouse authenticated the DD Form 1883 in the appropriate spaces on the reverse side of the form.

2.  The form is clear and provides cautionary notes to those making an election.  The form provides two notes that are of great importance not only to the person executing the form, but to their potential beneficiary as well.  These notes contain warnings, in effect, which state, "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully"; and "NOTE:  If retiree does not elect option B or C at this time, and should die before age 60, the survivors will not receive benefits under Public Law 95-397."

3.  Since the FSM completed the form and affixed his signature to the form, he acknowledged that the election he made was permanent and irrevocable.  The FSM provided no evidence to show he was misinformed or that he failed to understand his options.  It was only after he was diagnosed with cancer and he was advised and realized his disease was terminal that he sought to change his SBP election to provide his spouse an SBP annuity.

4.  From all the available evidence, it appears that the FSM knowingly and voluntarily elected Option A.  There is no evidence to show that any error or injustice was committed in this case.  Therefore, there is no basis upon which to grant the applicant's request.

5.  In order to justify correction of a military record an applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The FSM and the applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.




      ___________x____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20070016253



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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