IN THE CASE OF:
BOARD DATE: 18 November 2014
DOCKET NUMBER: AR20140005677
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 spouse of a former service member (FSM), requests reconsideration of her earlier request to amend the FSM's DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate).
2. The applicant states:
* she acknowledges receipt of the Board's decision
* the Board overlooked key evidence; the witness signed the day after she is purported to have signed
3. The applicant provides no new documentary evidence.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130001653 on 10 October 2013.
2. The applicant provides a new argument which warrants consideration by the Board.
3. The FSM was born on 22 July 1958. Having prior enlisted service in the Regular Army and Army National Guard (ARNG), he was appointed as a second
lieutenant in the ARNG in 1983. He was appointed as a second lieutenant in the U.S. Army Reserve in 1985. He married the applicant on 12 November 1995.
4. On 26 September 2001, the FSM was sent a memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter); confirming he was eligible to receive retired pay at age 60.
5. The FSM's DD Form 1883, dated 7 November 2001, shows he elected Reserve Component SBP (RCSBP) Option A (Defer) and declined to make an election at that time, but he would remain eligible to make an election for coverage at age 60. This form further shows in the block marked "Signature of Spouse (if married)" a signature of the applicant's same name on 6 November 2001, apparently concurring with the FSM's election.
6. Effective 7 January 2012, the FSM was assigned to the Retired Reserve in the rank of lieutenant colonel.
7. 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.
8. 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.
9. 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. Failure to elect an option results in the default election of Option C. The declination, with the spouses consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter.
DISCUSSION AND CONCLUSIONS:
1. Whether or not the applicant's signature is forged, the law requires the spouse's written concurrence. The DD Form 1883 shows both the FSM and the applicant signed on 6 November 2001. That page which shows the election chosen, however, is not signed by the FSM, and then witnessed, until a day later (7 November 2001). Therefore, there is no evidence the applicant ever received proper notification of the election made by the FSM.
2. In those cases where either no election is made, or the election is invalid, the level of participation in SBP reverts to Option C on the DD Form 1883, which is the maximum level.
3. Based upon the above, the FSM's records should be corrected to show automatic full immediate coverage under RCSBP.
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 an amendment of the ABCMRs decision in Docket Number AR20130001653 on
10 October 2013. As a result, the Board recommends the DD Form 1883 be invalidated and the Reserve Component Survivor Benefit Plan coverage be provided to the applicant per the law at the maximum level.
_______ _ ___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) AR20140005677
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140005677
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2005 | 20050002790C070206
The applicant requests, in effect, that 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 only coverage. Records at the U.S. Army Human Resources Command - St. Louis indicate that the FSM's records did not contain a DD Form 1883. The FSM's 20-year letter was issued in 1993.
ARMY | BCMR | CY2005 | 20050015385C070206
The applicant provides a supplemental letter; a memorandum from a commanding officer at Fort Bragg, North Carolina; a DD Form 1884 (Application For Annuity Under The Retired Serviceman's Family Protection Plan (RSFPP) and/or SBP); a Direct Deposit Sign-up Form; the FSM' s Certificate of Death; her Form W-4P (Withholding Certificate for Pension or Annuity Payments); the FSM's reassignment orders to the Retired Reserve; the FSM's 20-Year Letter; the FSM's Chronological Statement of...
ARMY | BCMR | CY2002 | 2002076772C070215
The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for former spouse coverage. On 10 August 1992, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883, and elected to participate in the RCSBP for spouse only coverage, full base amount, option C. He named the applicant as his spouse and indicated they were...
ARMY | BCMR | CY2010 | 20100011212
The applicant states, in effect: * It was the FSM's wish for her to be his SBP beneficiary * The FSM would have turned 60 years of age on 21 August 2009 * DD Form 1883 (Survivor Benefit Plan Election Certificate) was signed and submitted * She was the spouse of a service member who served 33 years in the Army and the U.S. Army Reserve (USAR) and sacrifices were made mutually * They were married for 37 years * The FSM served in Vietnam and was awarded the Bronze Star Medal and Air Medal 3. ...
ARMY | BCMR | CY2009 | 20090020974
Counsel requests, in effect, that the records of the FSM be corrected to show: * the applicant is entitled to Survivor Benefit Plan (SBP) benefits * the applicant is eligible to receive 20 percent of the FSM's retired pay 2. The divorce decree indicated that the applicant was to receive 20 percent of the FSM's retired pay. 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...
ARMY | BCMR | CY2002 | 2002067152C070402
APPLICANT REQUESTS: In effect, that the records of his deceased spouse, a former service member (FSM), be corrected to show she enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for option C. If the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that election. DISCUSSION : Considering all the evidence, allegations, and information...
ARMY | BCMR | CY2011 | 20110001656
The applicant requests, in effect, that the records of her late husband, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for her at the time of his retirement. The applicant further provided a copy of a letter, dated 30 November 2010, from HRC, Retired Pay Branch, wherein she was advised that a review of her late husband's Reserve Component Survivor Benefit File found that he did not complete a DD Form 1883; therefore, she was ineligible...
ARMY | BCMR | CY2013 | 20130003292
The FSM's records do not indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter. Although the FSM completed a DD Form 1883 on 17 October 2001, this form is not valid since it was not completed within 90 days of his 20-year letter. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing the FSM properly elected to participate in the RCSBP, spouse coverage, Option C, full...
ARMY | BCMR | CY2001 | 2001061094C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 3 January 1979, the FSM signed a Statement of Intent election to enroll in the Reserve Component SBP (RCSBP) for option C, spouse coverage. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
ARMY | BCMR | CY2014 | 20140002164
Application for correction of military records (with supporting documents provided, if any). She provides: * Self-authored statement * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 25 October 2000 * DD Form 2656-7 (Verification for Survivor Annuity), dated 13 May 2013 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Honorable Discharge Certificate * DD Form 1883 (SBP Election Certificate), dated 25...