IN THE CASE OF:	  

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130004221 


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 that the decision made by the Defense Finance and Accounting Service (DFAS) to deny her Reserve Component Survivor Benefit Plan (RCSBP) benefits be overturned. 

2.  The applicant states that due to an administrative error she is unable to receive the RCSBP.  Prior to a DA Form 2656-5 (RCSBP Election Certificate) being submitted to DFAS, it was altered with whiteout to show the FSM declined to make a Survivor Benefit Plan (SBP) election until age 60 instead of it showing he elected an immediate annuity with spouse-only coverage.  The DA Form 2656-5 erroneously shows she concurred with the election after she and a Notary Public signed the document.  

3.  The applicant provides:

* DA Form 2656-5, dated 1 June 2007
* State of Oregon Certificate of Death, dated 27 October 2011 
* letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), dated 10 December 2012
* notarized letter from C_______ Y. B________, a Notary Public, dated 29 January 2013




CONSIDERATION OF EVIDENCE:

1.  The applicant and the FSM married on 21 March 1992.

2.  The FSM had prior service in the Regular Army and the U.S. Naval Reserve.  He enlisted in the Oregon Army National Guard on 13 February 1998.

3.  On 5 March 2007, the FSM was issued his notification of eligibility to receive retired pay at age 60 (20-Year Letter).  

4.  The FSM completed a DD Form 2656-5 and signed this form on 1 June 2007. His spouse signed the DD Form 2656-5 under Section IX (SBP Spouse Concurrence) and a Notary Public verified her signature.

5.  The DA Form 2656-5 shows in:

	a.  Section IV, item 12 (Options), whiteout was used to obscure an entry in the box to elect Option C (Immediate Annuity); 

	b.  Section IV, item 13 (Type of Coverage), whiteout was used to obscure an entry in the box to elect "spouse only"; and

	c.  Section V (Level of Coverage), item 14 (Select the monthly amount of retired pay you wish to have the survivor annuity based on), whiteout was used to obscure an entry in the box to elect "reduced amount of retired pay" and an entry in the space provided for the dollar amount.

6.  On 26 October 2011, the FSM died. 

7.  On 7 November 2012, the applicant completed a DA Form 2656-7 (Verification for Survivor Annuity) requesting payment of the SBP after her spouse's death.

8.  On 10 December 2012, the applicant received a letter from the Chief, Retired Pay Branch, HRC.  The Chief, Retired Pay Branch, stated the FSM elected not to participate in the RCSBP and that the applicant had concurred with the election.  Therefore, she was not entitled to any benefits.

9.  The applicant provided a letter, dated 29 January 2013, from the Notary Public who notarized the DA Form 2656-5, dated 1 June 2007.  The official stated, "I can definitely confirm that I would not have notarized any form(s) that has/had white out on it.  I did in fact notarize a document (Survivor Benefit Election Cert) for [the applicant] on 6/1/2007."
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 RCSBP 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 occurs prior to age 60 premiums are deducted from the annuity.

11.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.

12.  Title 10, U.S. Code, section 1448, provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to overturn the decision made by DFAS to deny her eligibility for the RCSBP was carefully considered and it was determined there is sufficient evidence to support her request.

2.  Evidence of record shows that the FSM completed a DA Form 2656-5 and elected not to participate in spousal RCSBP coverage and that his spouse concurred with the election on 1 June 2007.  However, the DA Form 2656-5 contains several irregularities and the applicant argues that the document was altered after she signed the form and after it was notarized.  

3.  The DA Form 2656-5 shows that whiteout was used to obscure entries in the blocks to select Option C and "spouse only."  Whiteout was also used to obscure an entry selecting "reduced amount of retired pay" and the associated dollar amount.

4.  The applicant provided a letter from the Notary Public official who notarized the DA Form 2656-5, on 1 June 2007.  The Notary Public indicated she notarized the DA Form 2656-5 and confirmed that she would not have notarized any form that had whiteout on it.  

5.  It is unclear when the DA Form 2656-5 was altered, and it is not possible to determine what election the applicant was concurring with by signing the form.  DFAS's decision to deny the applicant's RCSBP claim is not technically incorrect; however, it appears the decision was made based on an unreliable document.  

6.  In light of the available evidence, as a matter of equity it would be appropriate to correct the DA Form 2656-5 to show the FSM elected RCSBP Option C for spouse only based on his full retired pay.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  amending the FSM's DA Form 2656-5 to show he elected RCSBP Option C for spouse only based on his full retired pay; and

	b.  paying the applicant the RCSBP annuity based on the above correction effective 27 October 2011, the day after the FSM's death.




      _______ _   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)                                         AR20130004221



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004221



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1