BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100013670 


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, in effect, the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. 

2.  The applicant states:

* Due to a clerical error, an election for spouse coverage was omitted on the FSM's DD Form 1883 (SBP Election Certificate), dated 21 March 1989
* The DD Form 1883 should be corrected to show the FSM elected spouse coverage
* On 21 March 1989, in preparation for his separation from the North Carolina Army National Guard, the FSM and she signed the DD Form 1883 that had been pre-completed for them
* On 20 April 1989, the FSM was discharged after 20 years, 10 months, and 26 days of total service
* The FSM was not a well-educated man
* The Defense Finance and Accounting Service (DFAS) denied SBP benefits because the FSM had not elected SBP benefits on his DD Form 1883
* It is the family's belief that because of the FSM's lack of education and total trust in the Army National Guard, he did not understand the pension paperwork completed for him by the office clerk    
* Over the years, the FSM stated numerous time to friends and family that should anything happen to him, she would be well cared for with his military pension, medical benefits, and social security     

3.  The applicant provides:

* Six letters of support
* FSM's death certificate
* DD Form 1883 and supporting documentation
* Orders, dated 25 October 1994
* Notification of Eligibility for Retired Pay at Age 60
* NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service
* DD Form 214 (Report of Transfer or Discharge)
* Power of Attorney

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 12 December 1934.  He married the applicant on 
23 June 1974.  Having prior active service in the U.S. Air Force, the FSM enlisted in the Army National Guard on 21 April 1977.  

3.  On 28 February 1989, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

4.  The FSM’s DD Form 1883, dated 21 March 1989, shows he was married and did not have any dependent children.  Item 8 (Check one of the following to indicate the type of coverage your desire) of this form is blank.  This form shows he elected full base amount, Option C (immediate coverage).  

5.  The FSM’s DA Form 4240 (Data for Payment of Retired Army Personnel), dated 27 June 1994, shows he enrolled in the SBP for spouse only coverage, full base amount.  This form was provided by DFAS.  

6.  Records at DFAS show the FSM declined coverage at retirement.  
7.  The FSM was placed on the retired list on 12 December 1994.

8.  On 13 December 2009, the FSM died.

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

10.  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 60th birthday, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Before the law was amended in October 2000, a member must have made 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.  In other words, failure to elect an option resulted in the default election of option A, decline enrollment and choose at age 60 whether to start SBP participation.

DISCUSSION AND CONCLUSIONS:

Although DFAS records show the FSM declined coverage at retirement, the FSM's DD Form 1883 indicates he intended to enroll in the RCSBP for spouse only coverage, full base amount, as the applicant contends.  

BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  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 his DD Form 1883 reflected he chose spouse only coverage, option C, full base amount and that this form was accepted and processed in a timely manner. 

2.  DFAS should audit the FSM's military pay records to determine annuity amounts due the applicant as well as the amount of any past due premiums owed.




      _______ _  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)                                         AR20100013670





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ABCMR Record of Proceedings (cont)                                         AR20100013670



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