RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060014468 


	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.


x
	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 reconsideration of her request that the records of her deceased husband, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states, in effect, that her husband properly made and executed the required DD Form 1883 (Survivor Benefit Plan Election Form) naming her as the beneficiary-spouse under Option C and that it has since been lost or misplaced.  She goes on to state that she is sure that such was the case because he executed various other documents in which he named her as the beneficiary for purposes of his Servicemembers’ Group Life Insurance (SGLI) and his Federal civil service benefits, which she is currently receiving.  She further states that she is sure he made the proper election because she has been able to obtain numerous sworn statements to the effect that he made the election and contends that a copy of the election form was present in his personal papers until shortly after his death when several military members went through his personal papers.  She continues by stating that there is sufficient evidence in the form of sworn statements to support the existence of the DD Form 1883 and her husband’s intent to provide her with RC-SBP benefits.  She also states that to deny her the benefits would be unfair, unjust and would be contrary to the intent of Congress when Congress recognized that changes to the RC-SBP were necessary in order to prevent the loss or forfeiture of retirement benefits of fallen members.       

3.  The applicant provides a binder containing 10 sworn statements, copies of marriage certificates and divorce decrees indicating that there were no other beneficiaries entitled to receive benefits from the FSM, a copy of his 20-year letter, a copy of his Retirements Points History, a copy of his SGLI Election Certificate, Federal Employee Government Life Insurance (FEGLI) Designation of Beneficiary and Thrift Savings Plan (TSP) Designation of Beneficiary naming her as the beneficiary. 

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 AR20040010133, on 27 September 2005.

2.  The FSM was born on 30 October 1948 and was inducted on 25 February 1971 and served on active duty until he was honorably released from active duty (REFRAD)  on 22 February 1973 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  

3.  He remained in the USAR until 28 September 1976 and on 29 September 1976, he enlisted in the Army National Guard (ARNG).  He remained in the ARNG and was subsequently appointed as a warrant officer.  

4.  On 8 July 1995, while serving as a chief warrant officer two (CW2) in the California ARNG (CAARNG), the FSM was issued a Notification for Eligibility for Retired Pay at Age 60 (20-year letter).  He was not married at the time.  

5.  The FSM was promoted to the rank of Chief Warrant Officer Three (CW3) on 21 January 1998 and he married the applicant on 18 July 1998.  On 7 August 1998, the FSM designated the applicant to receive his FEGLI and TSP benefits.  On 11 August 1998, he designated the applicant as the beneficiary of his SGLI benefits.   

6.  The FSM was also a Federal civil service employee (GS11) when he died on 17 January 2003, at the age of 54.  His automated service records indicate that he had no SBP election.

7.  The applicant applied to this Board requesting that the records of the FSM be corrected to show he enrolled in the RCSBP and on 16 December 2003, the Board determined that although there was evidence that the FSM had designated her as the beneficiary in other documents, there was no evidence of the FSM completing a DD Form 1883 designating her as the beneficiary under the RCSBP and denied her request.

8.  The applicant applied to the Board for reconsideration based on her contentions that because she was receiving benefits from the FSM’s Federal civil service and SGLI, it was reasonable to presume that the FSM designated her as the beneficiary of his RCSBP and that the form had been lost or misplaced.  The Board opined that absent a DD Form 1883 signed by the FSM, there was insufficient evidence to amend the Board’s previous decision and voted unanimously to deny her request on 27 September 2005.

9.  A review of the nine third-party statements provided by the applicant with her application shows that all nine persons opine that it was the FSM’s intentions   that the applicant receive all of his benefits.  Two of the nine individuals indicate that they saw the DD Form 1883 in which the FSM designated the applicant as the beneficiary under Option C.     

10.  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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

11.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires the dependent child.        

DISCUSSION AND CONCLUSIONS:

1.  While the Board does not doubt the veracity of the applicant’s claim that the FSM desired her to be the beneficiary of his benefits; the fact remains that there is no DD Form 1883 on record to solidify the FSM’s intentions at the time.  

2.  The Board has also noted the applicant’s contentions that the form was either lost, misplaced or taken by military members going through the FSM’s personal papers after his death.  However, in order to enroll in the RC-SBP, the DD Form 1883 had to be authenticated by the FSM and received by the Secretary concerned within 1 year after his marriage to the applicant     (18 July 1999).  Not only is there no DD Form 1883 on record, the FSM’s copy from his personal records cannot be found as well.

3.  Although there does not appear to be any visible motive for anyone removing the document from his personal files, the fact remains that it had to be authenticated and received within the 1-year period after his marriage and there is insufficient evidence to establish that the requirement to do so was met.

4.  The Board has noted the supporting statements and evidence submitted with the applicant’s request.  However, absent sufficient evidence to show that the FSM made an SBP election within the 1-year period after his marriage and through no fault of his own, the election form (DD Form 1883) was not forwarded to the appropriate officials, there appears to be no basis to grant the applicant’s request.

5.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to the Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  __x __  __x__  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 AR20040010133, dated 27 September 2005.




______  x_________
          CHAIRPERSON




INDEX

CASE ID
AR20060014468
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
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         1.137.0100
347/sbp elig
2.

3.

4.

5.

6.