RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070002425 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald L. Lewy

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 her husband, a Former Service Member (FSM), have his records corrected to show he elected a Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states, in effect, that her husband never received his notification of eligibility for retired pay at age 60 (his 20-year letter).  She states, in effect, she was told on 20 July 2004 she was not entitled to her husband's retired pay effective 29 July 2004 (date of death).

3.  The applicant provides a copy of the American Legion Statement in her behalf, dated 7 June 2007, with attachments.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board correct the applicant's records to show that she is entitled to her husband's RCSBP annuity.  

2.  Counsel states, in effect, that the Personnel Services made an administrative error when they forwarded mail (his 20 year letter) to an incorrect mailing address.  Through no fault of the applicant and her husband, the 20 year letter along with other critical and time sensitive information was unavailable to the couple.  Counsel further states that the administrative errors have caused the applicant to be denied her late husband's RCSBP annuity.  Counsel requests that the Board decide this matter in favor of the applicant as soon as possible.

3.  Counsel provides copies of the FSM's Death Certificate, Deed for Property Transfer, two Leave and Earnings Statements, a DA Form 2A (Personnel Qualification Record), Servicemen's Group Life Insurance Election Form, 20-year letter, dated 19 November 1992, letters concerning RCSBP non-enrollment, dated 24 June 1994 and 1 August 1994, DD Form 2656 (Data for Payment of Retired Personnel), DD Form 108 (Application for Retired Pay Benefits), Chronological Statement of Retired Points, dated 21 May 2004 and 3 September 2004, two DD Forms 214 (Report of Separation from Active Duty) for the periods ending 22 September 1977 and (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 29 July 1969, DD Form  
2656-7 (Verification for Survivor Annuity), Direct Deposit Form, a letter from Transition and Separations Branch, dated 20 July 2004, and a letter from Lewis County Veterans Service Agency. 



CONSIDERATION OF EVIDENCE:

1.  The FSM records show he initially enlisted in the U.S. Marine Corps on  
30 July 1965 and served four years.  He transferred to the U.S. Marine Corps Reserve in 1970 and served until 1971.  He had a break in service and then he reenlisted in the U.S. Navy in 1974, where he served until 1977.  He reenlisted in the Army National Guard in 1979 and then he transferred to the U.S. Navy Reserve in 1980.  He had break in service and then he reenlisted in the U.S. Army Reserve in 1981.  His Chronological Statement of Retired Points history shows that he was a Reservist until 1995.

2.  The FSM records show that he was born on 19 October 1946.  His date of marriage was 19 July 1975.  The FSM died on 27 June 2004.

3.  The applicant states that her husband's notification of eligibility for retired pay at age 60 (20 year letter) was mailed to the wrong address.  As a result, her husband did not respond to the letter's request to make an election for RCSBP.  The address on the 20 year letter is recorded as 5416 Stewart Street, Lowville, New York 13367.

4.  The applicant's Deed of Property Transfer shows that she and her late husband purchased land and took up residence at 7562 Cedar Street, Lowville, New York on 17 September 1988.  Also, all of the other documents submitted by the applicant show the address as 7562 Cedar Street, Lowville, New York.  However, the two letters concerning RCSBP non-enrollment dated 24 June  
1994 and 1 August 1994 show the address as 5416 Stewart Street, Lowville, New York 13367.  However, the two letters indicate the FSM received his  
20-year letter on 13 January 1993.

5.  There is no reasonable explanation as to why the 20 year letter was mailed to 5416 Stewart Street, Lowville, New York 13367.  However, 20-year letters are sent return receipt requested and the two letters concerning RCSBP  
non-enrollment state the 20-year letter was received by the FSM on 13 January 1993.

6.  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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  Before the law was amended as noted below, a member must have made 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.  In other words, failure to elect an option resulted in the default election of option A.

DISCUSSION AND CONCLUSIONS:

1.  Considering all the evidence, allegations, and information presented by the applicant through counsel, together with the evidence of record, applicable law and regulations, it is reasonable to conclude that the applicant's husband had ample time to make corrections to his records and to make an election for RCSBP between 13 January 1993 and 13 April 1993.  There is no evidence that the applicant's husband expressed an interest in enrolling in the RCSBP at any time.

2.  While the FSM’s 20-year letter was in fact mailed to the applicant’s previous address, it is reasonable to presume that he knew that he had served 20 years of service.  Therefore, it is also reasonable to presume by the fact that the FSM did not make any inquiries concerning his 20-year letter that the FSM either was not going to elect RCSBP or that he was going to wait until he reached age 60 to elect RCSBP.

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 this requirement.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___wdp__  ___wb __  ___dll___  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.




__________William D. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR20070002425
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070816
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.

2.

3.

4.

5.

6.