IN THE CASE OF:
BOARD DATE: 18 December 2008
DOCKET NUMBER: AR20080014824
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 applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected Option C (Immediate coverage) in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
2. The applicant states that the FSM was not properly counseled concerning his options under the RCSBP and she did not receive any counseling concerning her decision. She further states the when the FSM prepared his application for retired pay in March 2008 he realized there was an error on his RCSBP election made on 17 March 1998. She states the FSM made the correct choice for immediate annuity at that time. She further states that if both she and the FSM had been properly counseled, the original error in 1998 would not have been made.
3. The applicant provides, in support of her application, copies of the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate) and his death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM's military personnel record shows he enlisted in the Virginia Army National Guard on 29 December 1987 where he served until his transfer to the Retired Reserve. At the time of his enlistment he had 7 years, 10 months, and 24 days of prior active Federal service and 3 years and 1 day of prior Reserve Component service.
2. The FSM's 20-year letter notified him that having completed the required years of service; he would be eligible for retired pay upon application at age 60.
3. The FSM completed a DD Form 1883 on 17 March 1998. He indicated that he desired spouse only coverage for an annuity based on the full amount of his retired pay. In item 9c of the DD Form 1883, the FSM elected Option A to defer enrollment and choose at age 60 whether to start SBP participation.
4. The DD Form 1883 is signed by both the FSM and the applicant. The FSM had also elected to participate in the Supplemental Survivor Benefit Plan.
5. On 1 May 1999, the FSM was transferred to the Retired Reserve.
6. The FSM died on 20 May 2008, 2 months and 19 days prior to his 60th birthday.
7. 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the FSM's RCSBP election made on 17 March 1998 should be changed to show he elected Option C. The applicant contends that they did not receive proper counseling at the time of his election.
2. When the FSM completed the DD Form 1883 he indicated that he desired spouse only coverage at the full amount of his retired pay. He had also completed an additional form electing to participate in the Supplemental Survivor Benefit Plan. These elections are inconsistent with the entry in item 9c of the DD Form 1883 to defer election until age 60. Had the FSM truly intended to defer his decision for election of SBP until age 60, the entries in items 8 and 9a should have been left blank. Therefore, the DD Form 1883 as it is filled out is facially defective.
3. The SBP counselor should have pointed out the inconsistencies of the FSM's elections on the DD Form 1883, made appropriate corrections, and had the FSM complete a form that clearly showed his intent. However, the SBP counselor accepted and processed a fundamentally flawed form. This fact support's the applicant's contention that her husband was not properly counseled regarding RCSBP and that at the time he filed the DD Form 1883 he had believed he had successfully elected immediate coverage for his spouse based on the full amount of his retired pay.
4. In view of the above, there is sufficient evidence to show the FSM's intent was to elect spouse only coverage for immediate coverage based on the full amount of his retired pay. Therefore, as a matter of equity, it is appropriate to correct item 9c of the FSM's DD Form 1883, dated 17 March 1998, to show the FSM elected Option C. Costs for the RCSBP will come out of the applicant's annuity per law.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ____X__ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM elected Option C for immediate coverage in item 9c of his DD Form 1883, dated 17 March 1998, with the costs of the annuity being deducted from the annuity per law.
__________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) AR20080014824
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ABCMR Record of Proceedings (cont) AR20080014824
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