BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130006605 


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 correction of the DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) of her deceased husband, a former service member (FSM), as follows:

* item 15a (Last Name, First, Middle Initial) to show the name of her son as Daniel instead of Danny
* item 15c (Date of Birth (DOB)) to show her son's DOB as 29 May 1975 instead of 5 May 1975
* item 9c (Spouse's Social Security Number (SSN)) to show her SSN as XXX-XX-7867 instead of XXX-XX-2551

2.  The applicant also requests payment of the SBP annuity based on the death of her husband.

3.  The applicant states the DD Form 1883 was signed on 21 November 1993 which was within the 90-day window.  The witness signed it on 22 April 1994 which was not within the 90-day window.  However, this was no fault of hers or the FSM's.  On 21 November 1993, she and the FSM went to the Huntington Armory, PA, to complete the DD Form 1883.  Staff Sergeant (SSG) C____ L. L____, the full-time person, had given them the DD Form 1883 to fill out as a working copy.  He typed the original form and gave it to them for signature.  He said he would sign it as a witness and mail it to the higher headquarters.  They did everything as told and left.  They should not be penalized for mistakes committed by others.

4.  The applicant provides:

* DD Form 1883
* statement from SSG C____ L. L____
* letter from the U.S. Army Human Resources Command (HRC)
* Notification of Eligibility for Retired Pay at Age 60
* Retired Reserve orders
* DD Form 2656-7 (Verification of Survivor Annuity)
* FSM's death certificate
* Direct Deposit Sign-up Form
* Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payment)
* FSM's birth certificate
* FSM's marriage certificate
* her birth certificate
* child's birth certificate
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 10 May 1953.  He and the applicant were married on 26 January 1974.

2.  Having prior enlisted service, the FSM enlisted in the Pennsylvania Army National Guard (PAARNG) on 8 November 1974.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of sergeant/E-5.

3.  On 28 September 1993, the PAARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  On 21 November 1993, the FSM completed a DD Form 1883 wherein he indicated he was married to the applicant and they had two children:  Dulcie L., born on 28 June 1974, and Danny R. Jr., born on 5 May 1975.  The FSM elected spouse-only Reserve Component SBP (RCSBP) coverage based on the full amount, Option C (Immediate Coverage).  He and his spouse authenticated this form on 21 November 1993.

* he listed his spouse's SSN as XXX-XX-7867 in block 11
* he listed his spouse's SSN as XXX-XX-2551 in item 9c on the reverse of the form
* SSG C____ L. L____ signed this form as the witness on 22 April 1994

5.  The FSM was transferred to the Retired Reserve on 7 November 1994.

6.  The FSM died on 22 December 2012.  He was 59 years of age and his death certificate shows he was married to the applicant at the time of death.

7.  It appears the applicant submitted a DD Form 2656-7 with allied documents (Direct Deposit, and Form W-4P) to HRC in relation to her SBP annuity entitlement.  However, on 6 March 2013, HRC notified her that by law, the FSM had 90 days from the date he received his 20-year letter to submit his SBP election.  If an election was not made within the required 90 days, he would not be entitled to SBP coverage until he applied for retired pay at age 60.  As such, she was not entitled to an annuity under current law.

8.  She submitted a letter from SSG C____ L. L____, dated 1 April 2013, who states he retired from the Active Guard Reserve Program in July 2000.  He was formerly the full-time Administrative and Supply Sergeant with Company A, 2nd Battalion, 11th Infantry, Huntington, PA.  He worked there from December 1965 through July 2000.  On 21 November 1993, the FSM and his wife (the applicant) came into the armory to complete the DD Form 1883.  The form was filled out and signed by both the FSM and his wife.  He (SSG C____ L. L____) signed the form as the witness and told them he would mail it to the higher headquarters.  He put the package in a blank envelope and laid it on his desk to be addressed and mailed out.  Due to the workload at that time, he started on other reports that were due to higher headquarters.  He did not mail the FSM's paperwork right away.  Somehow the envelope was misplaced and it showed up on 22 April 1994.  He had completely forgotten about the FSM's packet and thought it was mailed out.  He found the envelope and saw that it was the FSM's DD Form 1883.  He had signed the form but had not dated it.  At that time he dated the form (22 April 1994) and mailed it out.  This was in no way the fault of the FSM or his wife.  They both had completed and signed the DD Form 1883 as required and within the 90-day requirement.  He was saddened to hear of the FSM's death as he was an excellent Soldier and his wife should not be denied this benefit that she surely deserves.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, 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, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* Option A – elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C – elect that a beneficiary receive an annuity immediately upon their death if before age 60

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  The FSM's records indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter and his spouse concurred with this election.

2.  For unknown reasons, the witnessing official forgot to date the form and forward it to the higher headquarters on time.  Nevertheless, the fact remains that the FSM made an election and his ARNG unit accepted and filed his election in his official records even though it was technically late.  It is clear that the FSM's intent had been to provide an annuity for his spouse.  Further, the fact that his unit accepted the form would have led him to reasonably believe his election was effective.

3.  Therefore, as a matter of equity, the FSM's record should be corrected to show he timely submitted his DD Form 1883 and it was timely processed by the Army.  Additionally, his record should further be corrected to show his spouse, the applicant, submitted a timely claim for her RCSBP/SBP annuity.

4.  As for the administrative data (child's first name and DOB, and her SSN), the applicant did not provide any evidence (i.e., child's birth certificate and her social security card) to support her claim of administrative errors.  The FSM and applicant would have been the source of the administrative data typed on the DD Form 1883.  In any case, RCSBP coverage is by category, not by name or SSN.  Correcting the SSN on this form would not have any effect on her SBP entitlement.  Likewise, correcting the child's first name or his DOB is not relevant since the FSM did not elect child coverage.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X___  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing the FSM timely submitted an RCSBP election for spouse-only coverage based on the full amount within 90 days of receiving his 20-year letter
* showing DFAS officials timely received and processed his election
* paying the applicant an SBP annuity beginning the day after the FSM's death

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the administrative data (child's first name and DOB, and her SSN) on the DD Form 1883.



      ___________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)                                         AR20130006605



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ABCMR Record of Proceedings (cont)                                         AR20130006605



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