RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060011959 


	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

Acting 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, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he elected to participate in the Survivor Benefit Plan (SBP) with children only coverage.

2.  The applicant states, in effect, that the FSM left his four children without any military benefits.  She also states that she believes the FSM did not fully understand the SBP when he was completing the SBP form.  She further states, in effect, that the individual who witnessed the FSM's SBP election form told her that the FSM said that day "I know it will all go to my children."  The applicant states, in effect, that she believes that the FSM clearly indicated that he was naming his children as his beneficiary in the event of his death because he listed them as dependents on the SBP form.  She adds, in effect, that the reason that no beneficiary [type of coverage] is indicated on the form is because the FSM was married at the time and he was not aware that his children could receive SBP benefits in the event of his death before he began to receive retired pay at age 60.

3.  The applicant provides a self-authored statement, dated 15 May 2006; The State of Texas, City of Texarkana, Texas, Certification of Vital Record, Certificate of Death, Registrar File No. 02-0113-06, dated 23 February 2006; The State of Texas, County of Mitchell, Austin, Texas, Marriage License, dated 12 December 1981; Rolling Plains Memorial Hospital, Sweetwater, Texas, Birth Certificate, dated 14 September 1982; State of Hawaii, Research and Statistics Office, Certificate of Live Birth, State File No. 151-85-010858, filed 21 August 1985; The State of Texas, Lamar County, Paris, Texas, Certification of Vital Record, File No. 141031-1989, filed 8 August 1989; The State of Texas, Lamar County, Paris, Texas, Certification of Vital Record, File No. 084223-1996, filed 15 May 1996; Last Will and Testament of Elbert Eugene L____, dated 7 February 1986; County Court at Law, Lamar County, Texas, Final Decree of Divorce No. 65,432, In the Matter of the Marriage of Sylvia L____ and Elbert Eugene L____, signed on
5 June 2000; DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), dated 10 December 2003; Statement of Roy S_______, dated 15 May 2006; and Statement of MSG Johnny B___, dated
11 May 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show his date of birth (DOB) as 28 May 1959.  


2.  The FSM's military service records show that he enlisted in the U.S. Army Reserve (USAR) on 16 September 1983 and entered active duty in the Regular Army (RA) on 29 December 1983.  He was honorably released from active duty on 16 December 1987 after completing 3 years, 11 months, and 18 days of active service and transferred to the USAR Control Group.  On 13 January 1989, the applicant enlisted in the Texas Army National Guard (TX ARNG), continued to serve in the TX ARNG, attained the rank of sergeant first class/pay grade
(E-7), and was honorably discharged on 28 February 2005 after serving a total of
21 years, 5 months, and 15 days.  The applicant was transferred to the Retired Reserve, effective 1 March 2005.

3.  The FSM's military service records contain a copy of Headquarters, Adjutant General's Department, AGTX-P, Austin, Texas, memorandum, dated
16 September 2003, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This document shows, in pertinent part, that the FSM was notified that having completed the required years of service, he would be eligible for retired pay upon application at age 60.  This document also shows, in pertinent part, that the FSM was notified he was entitled to participate in the RCSBP, advised that RCSBP is his sole means of protecting his retired pay entitlement, and provided detailed information concerning the RCSBP program and cost.

4.  In support of the application, the applicant provides the following documents.

     a.  County of Mitchell, Austin, Texas, Marriage License, dated 12 December 1981, that shows she and the FSM married on 12 December 1981.

     b.    Four Certificates of Birth that show she and the FSM had four children together:  Jessica Ann L___, DOB:  14 September 1982; Joshua Eugene L____, DOB:  16 August 1985; Riley Scott L____, DOB:  21 July 1989; and Colton John L____, DOB:  29 April 1996.

     c.  The FSM's Last Will and Testament, dated 7 February 1986, that shows, in pertinent part, if the FSM's wife did not survive him, his children (i.e., Jessica, Joshua, and Riley L____) would inherit all of his estate and real and personal property.  (The applicant and FSM's fourth child had not yet been born at the time the FSM executed this Will.)

     d.  Final Decree of Divorce in the Matter of the Marriage of Sylvia L____ and Elbert Eugene L____, dated 5 June 2000.  This document shows, in pertinent part, that the Court found the following children of the marriage:  Jessica Ann L___, DOB:  14 September 1982; Joshua Eugene L____, DOB:  16 August 1985; and Riley Scott L____, DOB:  21 July 1989.  The Court also found no other children of the marriage are expected.  (The applicant and FSM's fourth child, Colton John L____ was born on 29 April 1996, but is not included in the document.)  The Final Decree of Divorce between the FSM and the applicant provides, in pertinent part, "IT IS ORDERED that the provisions for child support in this decree shall be an obligation of the estate of ELBERT EUGENE L____  and shall not terminate on the death of ELBERT EUGENE L____.  Payments received for the benefit of the children from the Social Security Administration, department of Veterans Affairs, other government agency, or life insurance shall be a credit against this obligation."  The document is absent any mention of the RCSBP with respect to the FSM's estate.

     e.  The FSM's DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), dated 10 December 2003, shows in Item 7 (Are You Married?), the FSM placed an "X" in the "No" block and in Item 8 (Do You Have Any Dependent Children?), the FSM placed an "X" in the "Yes" block.  In Item 11 (Dependent Children), the applicant entered the following:  "L____, Jessica A., [DOB] 19830915 (sic)", [Disabled?]  "No"; L____, Joshua E., [DOB] 19850816", [Disabled?]  "No";  L____, Riley S., [DOB] 19890721", [Disabled?]  "No"; and L____, Colton J., [DOB] 19950429 (sic)", [Disabled?]  "No".  Section IV (Coverage), Item 12 (Options (Select one)  NOTE: Selecting Option A or Option B requires spouse concurrence in Section X), of the DD Form 2656-5 shows that the FSM placed an "X" indicating "OPTION A.  I decline to make an election until age 60.  (NOTE:  Do not select type of coverage below.)  This document also shows that the FSM placed his signature on the document on 10 December 2003 and it was witnessed by Roy J. S_______.  (Item 21 (Spouse) is absent any entries, as the applicant was not married at the time.)

     f.  The Statement of Roy J. S_______, dated 15 May 2006, indicates that he was the witness to the FSM's completion and signing of the DD Form 2656-5.  He also states the FSM "…clearly stated to me that he believed that his children would get his retirement benefits since he listed them as his dependents."  Mr. S_______ also states that he worked with the FSM for 16 years, who was a very loving father, and he believes the FSM's children are entitled to his retirement benefits because a clerical error was made on the form.  Mr. S_______ adds, in effect "I will stand behind this error 100%" and "[he] believes that this request is an error and injustice and needs to be amended for his minor children."

     g.  The Statement of MSG Johnny B___, dated 11 May 2006, indicates that he knew and worked with the FSM for about 13 years.  He states, in effect, that the FSM always took care of his family and that he would want that to continue (after his untimely death) with his ARNG retirement benefits.
     h.  The Certificate of Death shows that the FSM died on 29 January 2006. The Certificate of Death also shows, in pertinent part, that the FSM was married at the time of his death to Neala E______; however, the date of their marriage is not known. 

5.  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; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Normally an election, once made, is irrevocable, except as provided for by law.  In addition, RCSBP/SBP elections are made by category and beneficiaries are not designated by name.

6.  Title 10 of the United States Code, section 1552(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.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM's records should, in effect, be corrected to show that he elected to participate in the RCSBP with Child Only coverage to provide an annuity based on the full amount and Option C (Immediate Coverage), her statement, and the supporting documents she provides were carefully considered.  However, the applicant does not provide an adequate evidentiary basis to support granting the requested relief,

2.  The evidence of record confirms that upon becoming eligible to receive retired pay at age 60, the FSM was notified he was entitled to participate in the RCSBP, advised that RCSBP is his sole means of protecting his retired pay entitlement, and was provided detailed information concerning the RCSBP program and cost.
The evidence of record also shows that, within 90 days of the notification, the FSM indicated that he declined to make an election until age 60.  The FSM and counselor (or another witness) each affixed their signatures to the DD Form 2656-5 on 10 December 2003.

3.  The evidence of record shows that the FSM indicated that he was not married at the time he completed the DD Form 2656-5 on 10 December 2003.  However, the applicant states that the FSM was married (presumably, she is referring to Ms. Neala E______) at the time he completed the DD Form 2656-5 and that is the reason why the FSM did not elect children only coverage.  However, the applicant provides no documentary evidence to support this statement.  Moreover, if the FSM was married at the time he completed the DD Form 2656-5, presumably the FSM's spouse (at the time) would have a claim to the FSM's RCSBP had he opted for coverage.

4.  The evidence of record shows that the individual who witnessed the FSM's RCSBP election (i.e., a personal friend) asserts that a clerical error was involved in the process.  It is not clear if the witness was, at the time, a government official working in the office responsible for counseling Soldiers on their retirement benefits and the preparation of the related documents, or merely witnessed the document (as a personal friend) when the FSM signed the document.  Despite the fact that the comment, "I know it will all go to my children" is attributed to the FSM by the witness, this statement does not constitute clerical error in the FSM's RCSBP election.  Therefore, there is no evidence of record, and neither the person who witnessed the DD Form 2656-5, nor the applicant, provides any substantive evidence that a clerical error was involved in the FSM's preparation and execution of the DD Form 2656-5.

5.  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 for correction of the records of the individual concerned.




      __James E. Anderholm ____
          CHAIRPERSON




INDEX

CASE ID
AR20060011959
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/06
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
137.0100.0000
2.

3.

4.

5.

6.