RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 August 2007
      DOCKET NUMBER:  AR20070007566


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Ernestine I. Fields           |     |Member               |
|     |Mr. Randolph J. Flemings          |     |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, through a Member of Congress (MOC),
reconsideration of her earlier petition 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) for immediate spouse
coverage (Option C).

2.  In a letter to her MOC, the applicant states that based on his request,
she is again presenting the facts of her case for survivor benefits, which
she first submitted in 1999.  She claims, in effect, that the benefits
should have been awarded to her for several reasons, which she has
attempted to prove over this period of time; however, her attempts were
refused to even be considered by the ABCMR.

3.  The applicant provides the following documents in support of her
reconsideration request:  Self-Authored Letter to MOC, dated 14 May 2007;
ABCMR Record of Proceedings (AR1999034211); United States Army Reserve
Personnel Center (ARPERSCEN) Memorandum, dated 10 July 1996;
United States Army Reserve Personnel Command (ARPERSCOM)
Orders Number C-06-919793, dated 28 June 1999; and Extract of Chapter 2
(Retirement Services Program), Army Regulation 600-8-7.

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
AR1999034211, on 12 April 2000, and in a Deputy Assistant Secretary of the
Army (Review Boards) (DASA (RB)) Memorandum, dated 2 June 2000.

2.  The original Memorandum of Consideration prepared by the Board staff in
this case indicated, in the Discussion portion of the document, that the
evidence of record provided no indication the FSM had returned the RCSBP
election packet within 90 days of receiving his Notification of Eligibility
for Retired Pay at Age 60 (20-Year Letter) in 1998, which was required by
law.  A further finding stated that although there was a requirement for
the applicant to be notified that the FSM did not enroll in the RCSBP and
there was no evidence to show she had been, this was not a material error
because spousal concurrence was not required, and the lack of notification
to the applicant would not have affected the FSM's enrollment (non-
enrollment) choice.  Based on the findings, the Board staff recommended
that the requested relief not be granted in the case.  Contrary to the
staff recommendation, the Board unanimously voted to grant relief.
3.  Acting within his purview, the DASA (RB), after considering the Board's
rationale for its recommendation, disagreed with the Board's decision to
grant relief.  He indicated that the Board did not believe the applicant
had been notified of the failure of the FSM to enroll in the RCSBP, and
believed that had the applicant been notified, she likely would have
discussed this failure with the FSM and he would have taken the necessary
action to provide RCSBP protection for her.  He concluded that the Board
based its recommendation on a misunderstanding of the law and regulatory
guidance concerning enrollment in the RCSBP.

4.  The DASA (RB) explained that the RCSBP provides a way for those Reserve
Component (RC) members who qualify for retirement, but were not yet age 60,
to provide an annuity for their survivors should they die before reaching
age 60; however, if members failed to make an election within 90 days of
receiving their 20-Year Letter, they must wait until reaching age 60 to
make an election.  He further found that since the member is provided a 90
day window to submit the RCSBP Election Form after receiving the 20-Year
Letter, by the time Army Reserve Personnel Command (ARPERSCOM) officials
know a member failed to respond and notifies the spouse, the opportunity to
enroll in the RCSBP has passed until the member reaches age 60.  He also
found that in this case, the FSM's failure to respond within 90 days of
receiving his 20-Year Letter and RCSBP notification did not constitute an
election not to participate in the RCSBP. He stated that neither spousal
notification nor concurrence was required for a Reservist to delay a RCSBP
election until age 60, and that ARPERSCOM notified spouses of non-
enrollment elections only as a matter of policy, not as a matter of
statutory or regulatory requirement.

5.  The DASA (RB) further stated that the Board did not dispute the staff's
conclusion that the FSM received the 20-Year Letter, only that his spouse
was not notified of his failure to respond to the RCSBP enrollment
opportunity.  He indicated that in any case, the applicant would not have
received the notification until after the FSM's window of opportunity for
enrollment had already passed and receipt of spousal notification, no
matter how much discussion it may have generated, would not have altered
that fact.  The DASA (RB) finally found no error in the case and that
equity considerations weighed against acceptance of the Board's
recommendation for relief.

6.  In a 26 July 2001 letter to the President, the applicant indicated that
her husband commanded a transportation battalion after Operation Desert
Storm, and he was responsible to physically review equipment being sent
home.  She further commented that the FSM's physician believed his exposure
to this equipment and to heavily bombed out areas was the reason he
contracted cancer.  She further indicated that the FSM's cancer was first
detected in 1997, when he returned to Germany.

7.  In February 2004, the applicant submitted a reconsideration request
that included a self-authored statement, in which she made an appeal to
reconsider her request because there were several indications that the
RCSBP Election Form was lost or misplaced by the responsible ARPERSCOM
officials since her husband's records were incomplete.  She stated that
more importantly, her husband would never have intentionally denied her
this benefit, and he had told her he elected SBP protection and she
believed him.

8.  The applicant further stated that after waiting two years she received
a copy of the FSM's military records, which were kept in St. Louis,
Missouri, and not only was the RCSBP Election Form not present, there was
also no information regarding his assignment to Stuttgart, Germany and
Korea in 1996.  The record also did not include any of his retirement forms
showing he did in fact retire in 1999.  She further states the FSM also
requested she be provided a Certificate of Appreciation in his retirement
request, which was only provided after she pointed out the fact she had not
received the certificate to the Board in 1999, after the FSM's death.

9.  The applicant further stated that the FSM was professional in his
civilian life as well as his military career and he just would not have
failed to take care of his family in this manner.  She states he
volunteered for a command assignment during Operation Desert Storm and
again volunteered for active duty service during the Bosnian conflict,
which is evidence that he always did the right thing.  She states he was an
officer, who always volunteered for the tough jobs, and was proud of it.
He was a devoted father and husband, who would not have just ignored such
an important matter.  She states there is no conceivable rationale that
would justify him opting out of a benefit for his family.  She claims that
from the time he retired in April 1999, through the onset of his cancer in
May 1999, through chemo and radiation treatment in June through August 1999
and his subsequent death in September 1999, he made sure everything was in
place for his family and she has to believe that SBP was part of that.  She
claims that as an officer, the FSM knew the value of SBP protection and how
important this entitlement was to his family, and never would have deprived
them of this entitlement.

10.  The applicant also provided three third-party statements in support of
her reconsideration request.  The first statement is from a colonel who
served with the FSM.  The second is from their Pastor, and the third is
from a retired colonel from the Military Officer Association of America
(MOAA).

11.  The first supporting statement is from a retired colonel who states he
personally knew the FSM for over 7 years 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. He further indicated that the FSM stated to him,
just before he departed for active duty in support of the Bosnian effort in
1996, that he was having a problem with the Army not being able to find
some of his records and he was trying to get the problem resolved.  He
further stated that it was his hope that the leaders, who were responsible
for the decision in this case and in similar situations concerning our
service men and women would, if in doubt, do what is best for the service
member's family, who are the one's most in need.

12.  The applicant's and FSM's Pastor provided a letter stating that he
knew the FSM for over 43 years, and could truthfully state that the FSM's
character as a businessman, citizen, and parishioner would lead him to
believe he held the highest integrity of anyone the Pastor has known.  He
further stated that as a close friend, he knew the FSM was always concerned
for his family.  He indicates that knowing the FSM as he did, he cannot
believe that as an officer in the Reserves and a businessman, the FSM would
have failed to take care of his family.

13.  The third supporting statement submitted was from the Deputy Director,
Government Relations, MOAA, a retired Air Force colonel.  This individual
stated that he was contacted by the applicant in early January 2004, and
asked to help her convince the ABCMR that her late husband, did in all
probability elect RCSBP coverage for his family.  He states that after
discussing the situation with the applicant and reviewing the original
ABCMR decision, he felt compelled to write the letter supporting her
request, and to urge the Board to honor her late husband's commitment to
her that he did elect SBP coverage for his family.

14.  The MOAA Deputy Director further stated that he obviously is not in a
position to say whether the FSM made the election; however, he is an
experienced military personnel officer with more than 32 years of
experience managing a wide array of personnel activities; and is very
familiar with the SBP.  He suggests that it is very likely the FSM did
elect RCSBP coverage and the RCSBP Election Form (DD form 1883) was lost;
however, there is a strong correlation between the FSM's professional
responsibility-demonstrated through his voluntary service to our country
and his personal obligation to his family.

15.  This MOAA official also stated that no one will ever convince him that
the RCSBP forms did not get lost, as they do often.  He states that
procedures for administering the SBP benefit have improved over recent
years and much of this improvement involves including spouses in the
decision process, which was developed because of the problems being
experienced by the applicant.  He states it is not sufficient to say such
an important benefit should be denied simply because the system has no
record of a response.  He states that clearly there were other documents
missing from the FSM's record, like a record of his service in Germany and
Korea and other retirement documentation, which makes it conceivable that
DD Form 1883 was misplaced.  He states that if the present rules governing
SBP elections were in place when the FSM retired, his survivors would be
covered.  The applicant would have had to concur with the election decision
and is she did not, she would have been automatically covered.  In other
words, coverage would not be dependent on receiving a document, just the
opposite if the form was not received the applicant would automatically be
covered.  He states the changes made to the SBP program were the result of
personal tragedies experienced by people just like the applicant.

16.  The applicant submits a self-authored letter to a MOC as new evidence
for reconsideration.  In her letter, the applicant outlined the
circumstances of her case from her perspective and provided an outline of
the evidence she has provided in support of her application.  She states
that the ABCMR panel that reviewed her case recommended relief and that she
should receive the SBP benefit; however, the DASA (RB), overturned the
Board's decision on the basis that the election form was not submitted
during the 90 day window of opportunity to enroll in 1998.  She claims the
DASA (RB) did not consider the lost documents that never made it into the
FSM's record and in particular the retirement certificate for her, which
the FSM requested in conjunction with his 1999 retirement and was only
provided as a result of the Board review of her case.  Knowing the
paperwork and documents that were lost and never filed in the FSM's record,
the DASA (RB) still did not acknowledge the likelihood the RCSBP Election
Form could have and was likely lost or misplaced.

17.  The applicant further states that she requested a reevaluation of her
case based on her husband's death bed word that these things, including
SBP, were in place, and on the strong possibility that the RCSBP Election
Form could have been lost or filed somewhere in the maze of personnel
records where some of her husband's missing personnel records still are.
She states, she also submitted evidence attesting to her husband's
character and documenting missing service records once she had received
copies of his personnel file.  She claims that it has become a problem of
continuing to look for a "needle in a haystack", and the Board has never
acknowledged that there could have been an error made on the part of
personnel officials in processing the form, and that she has presented
other circumstances where these benefits have been awarded in similar
cases.

18.  The applicant also indicates there are several pieces of
correspondence with the St. Louis RC personnel officials that dispute the
actual date of his retirement since he was sent a letter in 1996, 1998, and
1999.  She states her husband sent in his retirement forms in April 1999,
got sick in May, was diagnosed with cancer in June and died in September
1999.  She states there are so many possibilities that this form was lost
somewhere and he never had time to check and see if it was indeed received
in the proper office because he was just too ill.  She claims that
according to the St. Louis Memorandum, dated 28 June 1999, her husband was
officially retired on 25 June 1999.

19.  The applicant further states the other consideration that should be
made in this case is that shortly after her husband's death, retirement
policies were changed and a system was put in place that would have removed
the possibility of this type of situation, and she would have received the
SBP annuity if the election form had not been submitted or was not on file
in the record.  She further states that neither she nor the FSM ever
received a RCSBP briefing and were never made aware of the various options
and the specific timeframes required for submission of an election form.
She indicates that under the current law and policy, spouse concurrence is
required for a member not to participate in the RCSBP.

20.  The FSM's record shows that on 27 August 1998, ARPERSCOM sent the FSM
his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
and SBP packet.  There is no information on file regarding whether or not
the FSM's RCSBP packet was submitted, and it is not on file in his record.


21.  On 25 June 1999, the FSM was transferred to the Retired Reserve, and
on
4 September 1999, he died of pancreatic cancer.

22.  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; (C) elect that a
beneficiary receive an annuity immediately upon their death if before age
60.  Under the law in effect at the time, a member was required to make the
RCSBP election within 90 days of receiving the notification of eligibility
to receive retired pay at age 60 (20-Year Letter) or else wait until he/she
applied for retired pay at age 60 and elect to participate in the standard
SBP.

23.  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, and the default election when an election form was
not submitted or is not on file is Option C.  This law is applicable to
cases where the 20-year letter was issued after 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  The original DASA (RB) decision not to accept the original Board
recommendation to grant relief in this case was based on the lack of
evidence to show it was the FSM's intent to provide RCSBP protection for
the applicant at the time he received his 20-year letter in 1998.  This
decision was fully supported by the available evidence and the governing
law in effect at the time.  As a result, there is no basis to question this
decision.

2.  However, subsequent to the DASA (RB) 2000 decision, the applicant has
submitted evidence that goes directly to the intent of the FSM to provide
RCSBP protection for his family, that raises questions regarding the
completeness of the FSM's record, and that requests equity consideration
based on the current law, which requires spousal concurrence prior to a non-
election of RCSBP coverage.  These factors, coupled with the original Board
recommendation to grant relief, provide a sufficiently compelling argument
to reconsider the original decision in this case.

3.  The original Board panel determined the applicant's claim, which was
that several record documents submitted to ARPERSCOM records custodians and
retirement officials were lost, was valid and the applicant provides a
credible third-party statement with her reconsideration request that
confirms the FSM had indicated he was having difficulty with getting
documents into his Official Military Personnel File (OMPF) and forms
properly processed in 1996, before he entered active duty.  As a result, it
is at least as feasible to conclude, as the original Board panel did, that
the applicant's RCSBP Election Form had likely been lost after it was
submitted, as it is to conclude the FSM failed to submit the election form.


4.  Although the likelihood of a lost document alone, when not supported by
evidence of intent to provide the RCSBP coverage on the part of the FSM,
was not sufficient to support granting the requested relief, as alluded to
in the
DASA (RB) disapproval memorandum, the applicant in the various statements
and letters contained in her reconsideration request, that indicate that
although not formally diagnosed, the FSM contracted cancer in 1997, and
that she was assured by the FSM on his death bed that these matters, which
included would have included RCSBP coverage, were taken care of.  In
addition, she provides three third-party statements from credible
individuals who all attest to the FSM's excellent character, and to the
fact his military service history and family history all reflect a
responsible family oriented man who would have without doubt provided RCSBP
protection for his family, and would not have declined any option to ensure
his family was protected upon his death.  This is even more true if he knew
he was ill in 1997, even if he was unaware the illness was cancer and
terminal, as attested to in the applicant's 2001 letter to the President.

5.  Further, although there were no retroactive provisions contained in
Public Law 106-398, enacted on 30 October 2000, which prevents 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 in a timely manner.

6.  The facts and independent evidence provided makes it as reasonable to
conclude the FSM did intend to provide RCSBP protection for his spouse and
that the documents were likely lost, as it is to find the FSM had no intent
to provide RCSBP protection to his spouse.  Therefore, it would serve the
interest of equity and compassion to find in favor of the applicant and to
conclude that it was the FSM's intent to provide RCSBP protection for his
spouse.
7.  In view of the facts of this case, the FSM's record should be corrected
to show he submitted his RCSBP Election Form within 90 days of receipt of
his 20-Year Letter, and to show he elected immediate full Spouse coverage
(Option C); and the applicant should be provided the SBP annuity due her
based on the death of the FSM on 4 September 1999, minus any SBP premiums
due from 27 August 1998, the date of his election, through 4 September
1999, the date of his death.

BOARD VOTE:

__LDS __  __EIF___  __RJF __  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
amendment of the Deputy Assistant Secretary of the Army (Review Boards)
decision of 2 June 2002, in this case.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing the FSM submitted his RCSBP Election Form within 90
days of receipt of his 20-Year Letter; by showing the FSM elected immediate
full Spouse coverage under Option C; and by providing the applicant any SBP
annuity payments due from the date of the FSM's death, minus any premiums
due from 27 August 1998 through 4 September 1999.




                                  _____Linda D. Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007576                           |
|SUFFIX                  |                                        |
|RECON                   |AR1999034211 - 2000/04/12               |
|DATE BOARDED            |2007/08/07                              |
|TYPE OF DISCHARGE       |NA                                      |
|DATE OF DISCHARGE       |NA                                      |
|DISCHARGE AUTHORITY     |NA                                      |
|DISCHARGE REASON        |NA                                      |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |128.1800                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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