RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060011621 


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


Mr. Gerard W. Schwartz

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of her request that the records of her deceased spouse, a former service member (FSM), be corrected to show that he changed his category of participation in the Reserve Component Survivor Benefit Plan (RCSBP) from child to spouse and child coverage.

2.  The applicant states, in effect, that her husband received his 20-year retirement letter (i.e., Notification of Eligibility for Retired Pay at Age 60) in August 1988.   At that time, knowing that he was getting a divorce from his then wife, he elected to designate his daughter as his Survivor Benefit Plan (SBP) beneficiary, since the Separation Agreement did not contain provisions for his then wife to be the beneficiary.  The applicant also states that after the FSM divorced his then wife, she and the FSM married in May 1990.

     a.  The applicant states, in effect, that the FSM assured her that he did not have to provide for SBP coverage for his former spouse and that his death benefits would definitely go to the applicant.  The applicant provides insight into the conversations she and the FSM had regarding his military travels, his diagnosis with prostate cancer, their plans to spend time together and her future without him, reviewing financial plans, their move to New Zealand, and the FSM's continued assurances that the applicant would be all right financially without him based upon the SBP and his other pensions.  The applicant states, in effect, that the FSM had all their financial paperwork in order and they updated their Wills.  The applicant adds, in effect, that while the FSM's illness was progressing, he provided her detailed instructions on actions to take after his death to start settling his estate, including contacting the U.S. Army Reserve Personnel Command (AR-PERSCOM) in St. Louis, Missouri, to start collecting SBP.  The FSM had always told her that his Army files were all in order.

     b.  After the FSM passed away, the applicant states that she spent most of her time searching for legal papers and Army files, but could not find anything.  When she contacted AR-PERSCOM and learned that the FSM had elected SBP child coverage, she was instructed to submit copies of all the documents she had.  That is when she discovered that she could not find a copy of a DD Form 1883 (Survivor Benefit Plan Election Certificate) showing that the FSM had changed his SBP election from child to spouse.  On 17 April 2003, the applicant submitted an application to the Army Board for Correction of Military Records (ABCMR) to correct, in pertinent part, the FSM's SBP coverage; however, that request was denied.  The applicant is now requesting that the case be reconsidered on the merits of what the FSM told her from the early days of their relationship until his death, his discussions with friends and colleagues, the erroneous discharge that caused confusion as to the FSM's status and benefits, and the legal documents the FSM prepared to take care of her.

3.  In addition to her own notarized affidavit, dated 24 June 2005, the applicant provides copies of the notarized Affidavits of Nanette R______, dated 5 July 2005, and Gerald A. B___, dated 9 March 2005.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the ABCMR's decision regarding the applicant's original application.  Counsel also requests, in effect, reconsideration of the ABCMR's subsequent determination, on 17 May 2006, that the applicant's request for reconsideration was not received within one year of the ABCMR's original decision.

2.  Counsel states, in effect, that he was not representing the applicant at the time of the original ABCMR decision.  However, in response to his request for reconsideration of the case on behalf of the applicant, dated 29 July 2005, the ABCMR denied the request because it was not received within one year of the original decision.  Counsel states, in effect, that he relied on the ABCMR publication "Applicant's Guide to Applying to the Army Board for Correction of Military Records" found on the Army Review Boards Agency website as recently as 31 May 2006.  Counsel refers to paragraph 14 (Reconsideration of Your Case by the ABCMR), which, in pertinent part, provides, "[i]f a request for reconsideration is received more than one year after the Board's original consideration or after the Board has already reconsidered the case, the staff of the Board will review the request for reconsideration to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if substantial relevant new evidence has been discovered after the Board's original decision.  If the staff finds such evidence, the case will be submitted for reconsideration by the ABCMR."

3.  Counsel, in effect, points out that the language in the ABCMR letter, dated
17 May 2006, denying the request for reconsideration cites the guidance in paragraph 2-15b (Reconsideration of Army Board for Correction of Military Records decision) contained in Army Regulation 15-185 (Army Board for Correction of Military Records), dated 31 March 2006, which went into effect on
1 May 2006.  This was approximately nine months after the date of his request for reconsideration and, so the letter, in effect, invokes a regulatory change to deny the request for reconsideration, despite the fact that the request met the Army regulatory requirement that was in effect at the time it was submitted.
4.  In the Application for Reconsideration, dated 29 July 2005, Counsel acknowledges that the FSM's change in SBP election cannot be accounted for in the records he left behind.  However, Counsel offers that the FSM's conversations with the applicant and numerous friends, indicating he had made a change to his SBP election from child to spouse, established this information as a belief of the applicant.  Counsel also states, in effect, that the FSM made it clear to the applicant that he elected his child as a "temporary measure to insure that his former spouse, C______ Y____, did not receive the SBP in the divorce process."  Counsel adds, in effect, based upon this information, it is believed that sometime between May 1990 and January 1991 (i.e., the one-year deadline from the date of his divorce from C______ Y____), the FSM made a change of election to reflect SBP spouse coverage.

5.  Counsel provides copies of the "Applicant's Guide to Applying to the Army Board for Correction of Military Records" and Army Regulation 15-185 (Army Board for Correction of Military Records), dated 31 March 2006, that were printed from the Army Review Boards Agency website on 31 May 2006.

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 ABCMR in Docket Number AR2003090860, on 25 November 2003.

2.  On 11 August 2005, the applicant wrote a letter to Senator Elizabeth D___, United States Senate, Washington, District of Columbia, in which she requested the Senator's assistance concerning the FSM's SBP.  Enclosures to her letter included Sullivan & Grace, P.A., Raleigh, North Carolina, Application for Reconsideration, dated 29 July 2005; notarized affidavits of the applicant, dated 24 June 2005; notarized affidavits of Nanette R______, dated 5 July 2005, and Gerald A. B___, dated 9 March 2005; Headquarters, U.S. Army Personnel Command, Transition and Separations Branch, St. Louis, Missouri, memorandum, dated 3 April 2003, regarding the applicant's eligibility for benefits under the SBP with enclosures; and Army Board for Correction of Military Records, Record of Proceedings, Docket Number AR2003090860, dated
25 November 2003.  These documents are also incorporated herein by reference, along with the ABCMR letter responding to Senator D___, dated
17 May 2006.

3.  The FSM was born on 14 August 1944.  After having had prior service, he entered the Army National Guard (ARNG) as a commissioned officer in the Judge Advocate General's (JAG) Corps on 27 October 1972.  The FSM's military service records show that he continued to serve in the JAG Corps through the date he was discharged from the ARNG and transferred to the Retired Reserve, effective 13 August 1988.

4.  The FSM's 20-year letter is dated 19 August 1988 and, on 22 November 1988, he completed a DD Form 1883.  The FSM indicated that he was married.  He elected to provide children only, full coverage, Option C (Immediate Coverage) and listed his natural daughter, M_____ S. Y____, with a date of birth of 15 October 1978.  His spouse (at the time) signed the DD Form 1883.  The FSM also signed a counseling statement acknowledging that he received information on the SBP elections available to him and the effects of those elections.

5.  The FSM was erroneously accessed into the Individual Ready Reserve (IRR) instead of the Retired Reserve.  The FSM was subsequently informed by Headquarters, U.S. Army Reserve Personnel Center (AR-PERCEN), St. Louis, Missouri, memorandum, dated 30 October 1989, that he had been twice non-selected for promotion to lieutenant colonel.  Since he was eligible for transfer to the Retired Reserve, he had the option to request transfer to the Retired Reserve.  The FSM apparently did not respond to the memorandum.  As a result, Headquarters, AR-PERCEN, DARP-PAT-R(NW), St. Louis, Missouri, Orders
D-01-003798, dated 9 January 1990, erroneously discharged him from the USAR Ready Reserve, effective 12 December 1989.

6.  The FSM divorced his first wife on 29 January 1990 and married the applicant on 10 May 1990.  The FSM died on 15 December 2002.  The FSM was married to the applicant at the time of his death.

7.  On 10 February 2004, Headquarters, AR-PERCEN, DARP-PAT-R(NW),
St. Louis, Missouri, Orders D-01-003798, dated 9 January 1990, were revoked in accordance with the findings of the ABCMR, Record of Proceedings, dated
25 November 2003.  The ABCMR Record of Proceedings concluded, "[w]hile it appears the erroneous discharge did not work to the detriment of either the FSM or the applicant, it would be appropriate to revoke ARPERCEN Orders
D-01-003798 dated 9 January 1990 discharging the FSM from the USAR effective 12 December 1989 as the applicant requests."

8.  In support of her application, the applicant provides two notarized affidavits from personal friends of the FSM.

     a.  Ms. Nanette R______  states, in effect, that she knew the FSM for approximately 7 years; they shared military backgrounds; and they discussed SBP on at least 12 occasions, including at least 6 times in the 3 years preceding the FSM's death.  Ms. R______ specifically recalls two conversations that occurred in 2002, during which the FSM assured her that he had completed the necessary paperwork to designate his spouse (i.e., the applicant) as his SBP beneficiary.  Ms. R______ also states she was interested in the FSM's SBP paperwork because of cases she was familiar with during her military service concerning second marriages and where children were involved.  Ms. R______ asserts that there is no doubt in her mind that the FSM was certain that the applicant would receive the FSM's SBP entitlement.

     b.  Mr. Gerald A. B___ states in his affidavit, in effect, that he was the Executive and Clinical Director of Queen Mary Hospital in New Zealand and he knew the FSM for approximately 7 years.  His involvement with the FSM included clinical input to the FSM's treatment for alcohol dependence and also clinical input for the FSM's daughter.  Mr. B___ states, in effect, that the FSM stands out among others he dealt with because of their common use of a U.S. medical insurance carrier, which required preparing special documents for treatment overseas; both being Americans living in New Zealand; their military backgrounds; and both had been divorced and were concerned about their personal affairs.  Mr. B___ states, in effect, that based on his military experiences regarding the plight of families who lost loved ones without having properly documented beneficiaries, this became a topic of their discussions.  Mr. B___ also states, in effect, the lack of easily accessible and reliable information caused the FSM and him to use a combination of sources to research a multitude of benefits, including the SBP and life insurance policies.  Mr. B___ also states, in effect, that they discussed Wills and the importance of having primary and contingent beneficiaries designated not only in the Will, but also on all other documents, such as military documents and life insurance policies.  Mr. B___ concludes that he is certain that the FSM was intent on financially protecting the applicant, in the event of his early death.

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 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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60, or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  An election, once made, is irrevocable except under certain circumstances provided for by law.

10.  Title 10 of the United States Code, section 1452(B), provides the legal authority for reduction in retired pay for RCSBP participants.  It states, in pertinent part, that in the case of a participant in the RCSBP who provided 
“Child-only” coverage during a period before becoming entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay.  A reduction under this paragraph is made without regard to whether there is an eligible dependent child during a month for which the reduction is made.

11.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army, and other Army publications.  Public Law 101-510, enacted 5 November 1990, delayed the start of the Open Season to 1 April 1992 through 31 March 1993.

12.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was given in Army Echoes and other Army publications.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 of this Army regulation provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records), dated 29 February 2000, paragraph 2-15 (Reconsideration of ABCMR decision), in effect at the time of the applicant's original application and subsequent request for reconsideration, provides, in pertinent part, that "[a]n applicant may request the ABCMR to reconsider a Board decision under the following circumstances:… b.  If the ABCMR receives the request more than 1 year after the ABCMR's action or after the ABCMR has already considered one request for reconsideration, the ABCMR staff will review the request to determine if substantial relevant evidence is submitted showing fraud, mistake of law, mathematical miscalculation, manifest error, or the existence of substantial relevant new evidence discovered contemporaneously or within a short time after the ABCMR's original consideration.  If the ABCMR staff finds such evidence, it will be submitted to the ABCMR for its determination on whether a material error or injustice exists and the proper remedy.  If the ABCMR staff does not find such evidence, the application will be returned to the applicant without action."

15.  Army Regulation 15-185 (Army Board for Correction of Military Records), dated 31 March 2006, paragraph 2-15 (Reconsideration of Army Board for Correction of Military Records decision), in effect at the time the ABCMR notified applicant's counsel via letter, dated 17 May 2006, of the denial of the request for reconsideration, provides, in pertinent part, that "[a]n applicant may request the reconsideration of an ABCMR decision under the following circumstances:…
If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction."

DISCUSSION AND CONCLUSIONS:

1.  Counsel's claim that the ABCMR letter, dated 17 May 2006, relied upon Army regulatory guidance that was effective subsequent to the date of the application for reconsideration and the argument that the applicant's request was improperly denied was carefully considered and deemed to have merit.  Therefore, the ABCMR staff referred the request to this Board for reconsideration.

2.  The evidence of record shows the FSM was married at the time he enrolled in the RCSBP in November 1988.  The evidence of record also confirms that the applicant elected "Children only" RCSBP coverage, at the full rate, and Option C (Immediate Coverage) on the DD Form 1883.  He acknowledged that he received information on the RCSBP elections available to him and was counseled about the effects of those elections.  Because he was married at the time, but elected not to provide for spouse coverage, he was, in effect, prohibited by law from ever providing for spouse coverage.  In addition, subsequent to his second marriage in May 1990, he still had an eligible dependent child who remained covered under the RCSBP.  Therefore, this RCSBP election was irrevocable, except under specific circumstances identified by law.

3.  The evidence of record shows that the FSM served in the U.S. Army as a JAG Corps officer for nearly 16 years.  The evidence of record also shows that the FSM acknowledged that he received information on the RCSBP elections available to him and the effects of those elections when he completed his
DD Form 1883 on 22 November 1988.  Based on the FSM's specialized knowledge and experience as a JAG officer, it is reasonable to assume that the applicant was capable of researching the United States Code, particularly with respect to its provisions governing the RCSBP.  In addition, it is reasonable to assume the FSM was capable of researching and understanding Army regulatory guidance concerning administrative instructions related to RCSBP election coverage. 

4.  The evidence of record shows that the FSM was notified of his eligibility for retired pay at age 60 in August 1988 and enrolled in the RCSBP with child only coverage on 22 November 1988.  The evidence of record also shows that the FSM married the applicant on 10 May 1990 and he died on 15 December 2002.  Therefore, the FSM had two year-long opportunities to add spouse coverage to his already existing child coverage (i.e., during the Open Season from 1 April 1992 through 31 March 1993 and during the Open Season from 1 March 1999 through 29 February 2000).  However, there is no evidence of record to show that the applicant took necessary action to add spouse coverage to his RCSBP at any time during his marriage to the applicant in 1990 until his death in 2002.

5.  Despite the fact that the FSM was prohibited by law from providing for spouse only coverage, there is no evidence of record to show that he attempted to change his SBP election from child only to spouse coverage or spouse and child coverage.  Although the Board does not question the veracity of the applicant's statement or the veracity of the two affidavits executed by personal friends of the FSM, the FSM's records are absent any evidence to show that he ever attempted to change his SBP election from child only to spouse coverage.  This lack of documentary evidence seems to indicate that the FSM understood he was precluded by law from changing his SBP election to spouse only coverage, notwithstanding his sincere personal commitment and desire to provide for the applicant in the event of his death.  Regrettably, there is no basis for granting the applicant's request.

6.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA        ___SWF_  ___RSV     DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2003090860, dated 25 November 2003.




 ____James E. Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20060011621
SUFFIX

RECON
2007/03/06
DATE BOARDED
20031125
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19880812
DISCHARGE AUTHORITY
AR 
DISCHARGE REASON
Transferred to Retired Reserve
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
137.0100.0000
2.

3.

4.

5.

6.