IN THE CASE OF:	  

		BOARD DATE:  4 September 2012

		DOCKET NUMBER:  AR20120004993 


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, the widow of a deceased former service member (FSM), requests correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse and children based on his full retired pay vice a reduced amount.

2.  The applicant states her signature on the SBP Spouse's Concurrence Statement is a complete forgery and is not her signature.  The two people who witnessed her signature were coworkers of her spouse and she has no idea who the notary was.  The notary could not have witnessed her signature because it is not hers.  She had no idea that this had been done until after the FSM's death on 17 April 2010 and only after another retiree alerted her.

3.  The applicant provides a DD Form 1883 (SBP Election Certificate), an SBP Spouse's Concurrence Statement, four letters, and a death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 20 May 1943.  Having had prior active service, the FSM's records show he enlisted in the Mississippi Army National Guard (MSARNG) on 20 August 1980 and he held military occupational specialty 92Y (Unit Supply Specialist).

2.  He and the applicant were married on 9 April 1983.

3.  On 9 September 1994, the MSARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This memorandum notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.  Enclosed with this letter was an SBP summary which notified him that he was entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

4.  The FSM's records contain a DD Form 1883, dated 17 November 1994, wherein he indicated he was married at the time with three dependent children.  This form shows he elected "spouse and children" full coverage under Option C (immediate coverage).  The FSM and his spouse each signed this form on 17 November 1994.

5.  He was honorably discharged from the ARNG on 10 September 1999 and transferred to the Retired Reserve.  He completed 19 years and 21 days of net service during this period of service and had 25 years, 1 month, and 27 days of total service for pay.

6.  The FSM died on 17 April 2010.

7.  The applicant provides a letter, dated 27 October 2011, from her to the Defense Finance and Accounting Service (DFAS), wherein she wrote concerning the amount of annuity she was drawing based on the death of the FSM.  She stated she was enclosing a DD Form 1883 signed by her husband wherein he elected full coverage.  She also stated she did not remember signing anything that would give her less than the full annuity.  In a second letter, dated 18 January 2012, from her to DFAS, she stated the signature on the SBP Spouse's Concurrence Statement was not hers.

8.  By email, dated 30 March 2012, an official with the DFAS, Retired and Annuity Pay Branch, verified the applicant was receiving a reduced annuity in the amount of $340.92.  Included with this email was a:

	a.  DD Form 2656 (Data for Payment of Retired Personnel), dated 27 May 1999, wherein the FSM indicated he was married at the time with three dependent children.  This form shows he changed his RCSBP election to "spouse and children" coverage with a reduced base amount of $462.00.  The FSM signed this form on 27 May 1999 and his signature was witnessed by an official from the Retirement Services Office, Fort Rucker, AL.  This form indicated a spouse's concurrence statement was attached.

	b.  SBP Spouse Concurrence Statement, dated 8 September 1999, wherein it stated the FSM elected SBP coverage for spouse and children with a base amount of $462.00, which was less than full retired pay.  This form shows the spouse "concur" block was checked and someone signed the applicant's name on the form on 8 September 1999.  The signature was witnessed by two people on that date and a notary public apparently signed the form.

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 (and participate in SBP), 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; (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 (costs for option C being the more expensive).  

10.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  

DISCUSSION AND CONCLUSIONS:

The evidence of record confirms that upon receipt of his Twenty-Year Letter the FSM elected "spouse and children" coverage under Option C (immediate coverage), full base amount, on 17 November 1994.  This is the election certificate that is filed in his record.  Although it cannot be determined for certain whether the applicant's signature on the DD Form 2656 is valid or not, this point is irrelevant.  As the FSM elected Option C coverage at the time he received his Twenty Year Letter, he was not entitled to change his RCSBP election at the time he was discharged from the ARNG.  Therefore, the applicant is entitled to the requested relief.

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 FSM be corrected by:

* Showing the DD Form 1883 signed by the FSM on 17 November 1994 wherein he elected "spouse and children" coverage under Option C (immediate coverage), full base amount was accepted by the appropriate office in a timely manner, making his DD Form 2656 SBP election invalid
* Paying the applicant all monies she is due from the day after the FSM's death as a result of this correction minus any unpaid premiums



      __________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)                                         AR20120004993





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004993



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1