MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 26 NOVEMBER 2002
         DOCKET NUMBER: AR2002076386

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of her request to correct the military records of her deceased spouse, a former service member (FSM), to show that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES: The applicant made no statement, but deferred to counsel.

COUNSEL CONTENDS: Counsel states that he is responding to the letter from this Board informing the applicant that her petition for reconsideration would not be submitted to the Board and was being returned without action. Counsel states that her petition was in fact submitted on 12 November 2001, within a year of the 12 December 2000 decision by the Board denying her original request. Counsel states that her case should have been reviewed by the Board.

Counsel states that the applicant initially submitted no evidence and made no argument other than to suggest her husband had actually enrolled in the plan. Applicant now submits an affidavit and two letters from the Army containing misleading notices about the ability of the FSM to enroll a new spouse in the RCSBP. This petition also includes a seven-page brief discussing why these notices were defective under 10 U.S.C., Section 12731(d).

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 12 December 2000 (AR2000040993).

On 12 November 2001 the applicant requested that the records of the FSM be corrected to show that she was entitled to receive RCSBP payments. Enclosed with that request is a copy of a 4 December 1996 letter from the Army Reserve Personnel Center notifying the FSM that he would be eligible for retired pay at age 60. That letter includes a standard paragraph informing the FSM that he is entitled to participate in the RCSBP, and that by law, he had only 90 calendar days from the date that he received the letter to submit his SBP election certificate; that failure to do so would mean that he would not be entitled to SBP coverage until he applied for retired pay at age 60, and that should he not elect coverage, and die before age 60, his survivors would not be entitled to benefits. That letter also indicated that the election form and more detailed information concerning participation in the RCSBP were enclosed.

Also enclosed is a copy of a 31 October 1997 letter from the Army Reserve Personnel Center indicating that the FSM received RCSBP materials on 31 July 1997, and informing him that because he did not return the election forms within the 90 day period, his survivors would not be eligible to receive any monetary benefits under the plan. He was excluded from participating in the plan until attaining age 60 and applying for retired pay.
In a 12 November 2001 affidavit, the applicant stated that she and the FSM were married on 18 November 1997, and that he mentioned to her that they would receive retired pay after he turned 60. She stated that he never mentioned a survivor benefit plan, and she did not know about it until after his death. She stated that her husband died on 4 July 1999. She stated that she was his beneficiary for most of his Servicemembers’ Group Life Insurance benefits, and the beneficiary for all of his other polices, property, civilian pension, etc. She stated that if the FSM had known that he could enroll her in SBP before he reached age 60, and that otherwise she might lose SBP benefits if he died before reaching age 60, he would have signed up for the program.

In his seven page brief in support of the applicant’s petition, counsel stated that the Army failed to notify the FSM of his available RCSBP elections. He stated that the law requires a written notice within one year of retirement eligibility which requires notification of the elections available and the effects of such elections. Counsel stated that the law states that if a servicemember is single at the time of retirement eligibility but marries before reaching age 60, he has one year from the marriage to elect RCSBP coverage for his new spouse. Counsel stated that the information provided to the FSM violated the notice requirements of 10 U.S.C., Title 12731(d), by failing to mention this category of election available. He stated that the unqualified statement contained in the 20 year letter to the applicant misstated the law potentially applicable to a single servicemember, and by failing to explain or mention his right to elect RCSBP for a new spouse, the notice inaccurately informed the FSM he could not enroll until he applied for retired pay at age 60. Counsel stated that the original notice [in the 20 letter] was compounded by the 31 October 1997 notice to the FSM sent to him shortly before his marriage, and that the two defective notices discharge the applicant’s only burden, which was to prove error in the existing record. Counsel stated, however, that the circumstances of the case strongly suggest that the FSM would have enrolled in the RCSBP if the Army had properly notified him of the availability of the new spouse election.

Counsel stated that the applicant’s affidavit shows that the FSM did not intend to deprive his wife of her survivor’s annuity, and that his failure to formally elect RCSBP coverage was inconsistent with those other actions to protect the applicant’s financial future. He stated that the FSM apparently believed that he could not enroll until he reached age 60, and that he thought he would live to that age.

Counsel stated that several federal courts have ordered boards to correct records of SBP elections, and cites four court cases. He stated that the Army could fully comply with 10 U.S.C., Section 12731(d) and prevent its standard notice from misleading other servicemembers by simply adding one sentence about the new spouse rule to the standard notice or by explaining the exception in a separate written notice following the new marriage. Either approach would further the intention of Congress.

On 29 May 2002 this Board inadvertently notified the applicant that more than one year had elapsed since the original consideration of her case, and because her application did not contain evidence that met certain criteria, e.g., fraud, mistake in law, etc., there was no basis for resubmitting her request to the Board and it was returned without action. That letter did inform her, however, that while the 20 year letter that her late husband had received, did not specify all of the SBP procedures, the complete details were provided in the enclosure to the letter (Fact Sheet, Reserve Component Survivor Benefit Plan). That included information to service members who did not have an eligible annuitant at the time but later acquired an eligible annuitant.

10 U.S.C., Section 12731(d) states in effect that the Secretary concerned shall notify each person who has completed years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. The notice shall include notice of the elections available to such person under the Survivor Benefit Plan and the effects of such elections.     

Information provided by the Army Reserve Personnel Center (now the Army Reserve Personnel Command) with the 20 year letter to a Reserve Component soldier includes various rules governing coverage under the RCSBP, to include the one in the applicant’s situation – a soldier [the applicant’s deceased husband] not married at the time he attains initial eligibility, but who later marries or acquires a dependent child. Rules cited also include election of RCSBP coverage by an unmarried soldier for a person who has insurable interest in the soldier as a beneficiary; election of RCSBP coverage by soldiers serving on active duty as members of the Active Guard/Reserve program; election of RCSBP coverage for former spouse; options available to soldiers upon remarriage. These rules and options are in addition to the standard SBP paragraph contained in a 20 year letter.

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:

1. There is no evidence, and neither the applicant nor counsel has provided any, to support their contention that the FSM would have elected to participate in the RCSBP program had he known that he could have done so. The Board acknowledges that the information contained in the 20 year letter did not specifically address RCSBP coverage for an unmarried soldier who married subsequent to receipt of the 20 year letter; however, that information and information concerning other RCSBP rules was apparently provided to the FSM with the 20 year letter as indicated in that letter. The FSM knew or should have known the options available to him.

2. Consequently, the Board believes that the notification requirements contained in 10 U.S.C., Section 12731(d) were complied with.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__SAC__ __RWA__ __HOF __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002076386
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021126
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	137.00
2.
3.
4.
5.
6.