RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 January 2008
	DOCKET NUMBER:  AR20070011109 


	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:


Ms. Barbara J. Ellis

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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, reconsideration to correct her deceased husband's DD Form 1883 (Survivor Benefit Plan (SBP) Certificate) to show she was elected as the beneficiary to receive his SBP annuity.

2.  The applicant does not submit any additional statements in support of her request.

3.  The applicant provides a copy a letter addressed to her state representative; a copy of the Former Service Member's (FSM’s) Department of Veterans Affairs Rating Decision; Social Security Administration Retirement, Survivor and Disability Insurance; District of Columbia National Guard Orders 010-032, dated 10 January 2002; a copy of the original Board's decision, dated 7 June 2007; and a copy of four prior Army Board for Correction of Military Records (ABCMR) cases.

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 AR20060015128, on 7 June 2007.

2.  In its original decision the ABCMR found that it was the FSM's responsibility to complete the DD Form 1883 as accurately as possible.  Also, if the FSM did not understand what the intent of the form was, it was his responsibility to ask questions or seek additional guidance.  It was noted that the FSM served for almost 1 year after he received his 20-year letter and had sufficient time to obtain clarification if needed.  In addition, the FSM would have received periodically the retiree bulletins that constantly remind retirees to update their personal information.  The applicant has provided no evidence to substantiate what the FSM's intent was at the time he completed the DD Form 1883.  As a result, there was no basis to support granting the requested relief.

3.  The applicant has not provided any new argument.  However, she submits copies of like ABCMR cases in which relief was recommended.  This case is being reconsidered by the ABCMR to address the applicant’s submission.

4.  Through the four previously boarded cases that the applicant submitted the applicant attempts to show similarity in how the Board made its determinations based on a lack of information, understanding, opportunity to complete the SBP 
election form due to disability, declination to enroll in SBP with spousal concurrence, and failure to change the FSM's SBP coverage to former spouse coverage within the 1 year time limit established by law.

5.  The FSM's DD Form 1883 shows that he made the election for children only with the understanding that if he did not chose option B or C in section II of item 9c and he died before age 60, his beneficiary would not receive benefits under Public Law 95-397.  Also, recorded in this same section of the DD Form 1883 is the following statement, "Important:  the decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."

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.

7.  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.  Considering all the evidence, allegations, and information presented by the applicant through her arguments, together with the evidence of record, applicable law and regulations, it is reasonable to conclude that the FSM had ample time to make corrections to his SBP election between 11 March 2003 and 1 July 2006.

2.  The four cases that the applicant submitted were carefully considered. However, ABCMR cases are administrative determinations, not judicial, and do not generally establish any precedent.  In addition, every case is considered by the board on its merit.  While some cases may be similar, rarely are they identical.  None of the factual scenarios in the four cases are close enough to the facts in the applicant's case to require a correction of records in the applicant's case.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AMC__  __DAC__  __REB   _  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 AR20060015128, dated 7 June 2007.




___Ann M. Campbell          _
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080103
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.