RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20070005343 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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, entitlement to the Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her deceased husband, a former service member (FSM).

2.  The applicant states, in effect, that:

	a.  Her spouse completed and returned the DD Form 1883 (Survival Benefit Plan Election Certificate) in October 1996 with his 20-year letter.  She further adds that her spouse, who worked as an attorney, discussed the RCSBP with other attorneys and military officers on several occasions.

	b.  The Human Resources Command's (HRC) denial of the RCSBP is incorrect because the law clearly states that the form requires the spouse to consent to elect less than maximum coverage.

	c.  There is ample independent and circumstantial evidence that her spouse completed the DD Form 1883 and returned it to HRC.

	d.  The DD Form 1883 and the law that governs benefits clearly state that she could not be denied benefits without her written consent.

	e.  The Army's written explanation of the RCSBP program, dated May 1996, told the FSM that he had to obtain his spouse's written concurrence if he wanted to decline coverage.

	f.  The DD Form 1883 is confusing since a Soldier could reasonably conclude that failing to return the form would still result in automatic coverage.

	g.  Equity and fairness demand that the Army not confuse Soldiers regarding something as important as the RCSBP.

3.  The applicant provides the following documentations in support of her application:

	a.  The FSM's Certificate of Death.

	b.  Blank DD Form 1883.

	c.  Extract of Pamphlet entitled "The Survivor Benefit Plan: Basic Questions Answered”, dated May 1996.

	d.  Blank DD Form 2656-9 [Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election].

	e.  The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated September 1980.

	f.  The FSM's DD Form 214 dated May 1991.

	g.  Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, Orders 06-023-00032, dated 23 January 2006, placing the applicant in a Retired Reserve status.

	h.  Affidavit from the Staff Judge Advocate (SJA), Fort Benning, Georgia, dated 19 March 2007.

	i.  Character Statement, dated 16 February 2007, submitted by another attorney who worked with the FSM.

	j.  Affidavit from a Licensed Attorney and Family Member, dated 15 February 2007.

	k.  HRC, St. Louis, Missouri, letter, dated 29 January 2007, notification of non-eligibility for RCSBP due to no election made.

	l.  10 U.S.C § 1448, 1994 Edition and Supplement II, Laws through 6 January 1997, 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the spouse's entitlement to RCSBP benefits based on the death of her FSM deceased husband.

2.  Counsel states that the applicant requested the opportunity to appear before the ABCMR in Washington, D.C.  Counsel adds that although he is listed as counsel of record in Item 11 of the DD Form 149 (Application for Correction of Military Records), Major General (Retired) N*******, the former Judge Advocate General for the United States Army, requests to serve as the applicant's representative before the Board if a hearing is granted. 

3.  Counsel is presumed to have helped the applicant in providing the above mentioned documentation in support of her application. 
CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he was born on 7 August 1950.

2.  The FSM's records further show that he was commissioned as a 2nd lieutenant in the U.S. Army Reserve (USAR) on 4 June 1972.

3.  On 30 October 1996, the US Army Reserve Personnel Center issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter, in effect, notified the FSM that he had completed the required years of service and would be eligible for retired upon application at age 60.  This letter also notified the FSM that he was entitled to participate in the RCSBP and that upon receipt of notification of eligibility for retired pay at age 60, he had 90 days in which to elect to participate in the survivor benefit plan or remain uncovered by the plan until he became 60 years and again afforded the opportunity.

4.  There is no evidence in the FSM's records which shows that he elected to participate in the RCSBP during his 90-day window of opportunity in 1996.

5.  Headquarters, 81st Regional Readiness Command, Orders 06-023-00032, dated 23 January 2006, show that the FSM was released from his current assignment due to maximum authorized years of service and assigned to the Retired Reserve effective 1 February 2006. 

6.  On 9 August 2006, the FSM died at the age of 56.

7.  The applicant provides three third-party statements in support of her request.  The first is an affidavit from a colonel who was the FSM's supervisor.  The second is from a lieutenant colonel who was also an attorney working in the same office and the third is from another attorney who had known the FSM for 22 years.

8.  In the first supporting affidavit, Colonel C****, the SJA, U.S. Army Infantry Center and Fort Benning, Georgia, states that he had a supervisor-subordinate relationship with the FSM from July 2004 to August 2006. Colonel C**** states he personally knew the FSM and could attest that he was a very organized professional Soldier who served his country honorably.  He also indicated that the FSM was a very loving husband and father, who cared for his family very much.  He states that he would be extremely surprised if the FSM had not requested RCSBP coverage to provide for his family in the event of his death.  Colonel C**** adds that he was aware of the FSM's retirement and discussed 
with him financial options for their families to include the SBP and that the FSM had told him that "his father and grandfather had died of heart attacks in their fifties and that he was convinced that genetics and family history would result in his early death."  Colonel C**** also states that he personally saw the FSM going over SBP enrollment forms and that the FSM said "Sir, are you kidding me?  I told you my father and grandfather died early.  Of course I kept full SBP coverage.  Do you think I am crazy?"  Colonel C**** concludes that is fully convinced that the FSM was not the type of Soldier who procrastinated and that the FSM had indeed mailed the SBP enrollment forms.  Colonel C**** suggests that it is very likely the FSM did elect RCSBP coverage and that the DD form 1883 was lost; however, there is a strong correlation between the FSM's professional responsibility-demonstrated through his honorable service to our country and his personal obligation to his family.

9.  In a second affidavit submitted by the applicant, Lieutenant Colonel L*D*** states that during the course of several conversations with the FSM, he recalls the FSM mentioning to him that he (the FSM) "had adequately secured SBP for his wife."  Lieutenant Colonel L*D*** also states that the FSM was very meticulous in his work and personal affairs, implying that knowing the FSM as he did, he cannot believe that as an officer in the Reserves and an attorney, the FSM would have failed to take care of his family.  Lieutenant Colonel L*D***, concludes that to the best of his knowledge, he remembers the FSM telling him "he made arrangements for the SBP." 

10.  In a third affidavit submitted by the applicant, Mr. K****, a licensed attorney who has known the FSM from 1980 until his death in 2006 and who is also related to the FSM, states that he had numerous discussions with the FSM regarding the SBP, retirement benefits, and financial planning.  Mr. K**** adds that in 2005, during a visit by the FSM, they discussed retirement and after death benefits.  Mr. K**** recalled discussions regarding the SBP because they were in the context of a conversation about similar benefits passing to the FSM's mother after his father died.  Mr. K**** concludes that during their 2005 retirement conversation, he remembers the FSM telling him "I have that all covered."

11.  On 27 January 2007, the Chief, Transition and Separation Branch, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, sent a letter to the applicant informing her that upon review of the FSM's SBP file, HRC "found that the FSM did not execute a DD Form 1883 Survival Benefit Plan Election Certificate and that since he did not elect into this plan, no one is entitled to the annuity."

12.  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.  At the time, 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 applied for retired pay and elected to participate in the standard SBP.

13.  Before the law was amended as noted below, a member must have made the election within 90 days of receiving the 20-year letter or else wait until he or she applied for retired pay and elected to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.

14.  Section 655 of Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she is entitled to receive RCSBP benefits based on the death of her FSM spouse.

2.  Although the U.S. Army Human Resources Command, St. Louis, Missouri has informed the applicant that there is no DD Form 1883 on file showing that the FSM elected RCSBP coverage, this does not mean that the FSM did not complete and submit the form.

3.  Everything in the FSM's personal history suggests that he was not a person who would have procrastinated on such an important matter as the financial well being of his family.  The FSM was an attorney and an Army officer with a reputation for being meticulous, detail-oriented, and completely thorough in all that he did.  Furthermore, the FSM had publicly stated that because of a genetic pre-disposition for coronary artery disease among the men in his family – a pre-disposition which resulted in the untimely deaths of his father and grandfather – he felt it absolutely essential that he enroll in the RCSBP in order to provide for his wife should he suffer the same fate as his father and grandfather.
4.  Three affidavits were submitted by highly credible individuals occupying senior positions in the Army and federal government.  All attest to the FSM's excellent character and fastidious nature in handling his affairs.  All affirm that the FSM informed them at one time or another that he had enrolled in the RCSBP because he felt a strong compulsion to do so based on his personal and family medical histories.  All have said the FSM was an honorable and honest man who would not have made such statements unless he assumed that he had, indeed, properly enrolled in the RCSBP program.

5.  The FSM's history of early death of his father and grandfather elevated the significance of completing the SBP form in a timely manner to ensure his family's financial wellness and readiness and convinced other attorneys that the FSM had indeed forwarded the form to the appropriate office.

6.  Although there were no retroactive provisions contained in Public Law 106-398, enacted on 30 October 2000, which allows its direct applicability in this case, this change to the law clearly shows Congress's intent to remove the possibility of situations such as the applicant's by requiring spousal concurrence in a non-election of coverage and by providing the default election of Option C, immediate coverage, in cases where the election form is not submitted or received in a timely manner.  

7.  Based on the witnesses' affidavits, it is presumed that a DD Form 1883 was prepared at the time the FSM received his 20-Year Letter; however, it is apparent that the form was misplaced or lost unintentionally.  Therefore, it would be in the interest of justice, equity, and fairness, for the Board to recommend that the FSM's records be corrected to show that the applicant was entitled to SBP annuity, Option C, full amount of base pay, effective 9 August 2006, the date of the FSM's death.  

BOARD VOTE:

__amc___  __lmd___  __jcr___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the FSM timely applied for SBP for his spouse and that she be paid an annuity based on the FSM's election to participate in the SBP, Option C, full amount of base pay, retroactive to 9 August 2006, the date of the FSM's death.




							Ann M. Campbell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005343
SUFFIX

RECON

DATE BOARDED
20071002
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
137.0100
2.

3.

4.

5.

6.