RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 6 March 2008
	DOCKET NUMBER:  AR20080001384 


	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.  


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	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 her Member of Congress (MOC), in effect, reconsideration of her request that the records of her deceased spouse, a former service member (FSM), be corrected to show he applied for a Reserve Components Survivor Benefit Plan (RCSBP) annuity for her and to show she is entitled to receive a RCSBP annuity.

2.  In her request, the applicant, in effect, states her husband of 39 years spent almost 30 years in military service – both active duty and Reserve.  He died eight days before his 60th birthday.  His intent was to begin drawing retirement after turning 60.  The applicant states she never received any notification that she needed to file anything further after she wrote to the Veterans Administration of his death.  Her assumption is that the forms needed were lost by the military and she was denied benefits.

3.  She summarizes her request for her MOC's assistance by asking that he prepare a letter to the Department of Defense asking them to reverse the denial and distribute benefits.

4.  In support of her request, the applicant provides a copy of letters she received from the Army Review Boards Agency, dated 5 September and 6 December 2007, respectively; a copy of a Chronological Statement of Retirement Points, dated 11 October 2004; a copy of the FSM's death certificate; a letter of support and request for the reopening/reconsideration of the denied case (Docket Number AR2004103108) from a financial consultant, dated 27 August 2007; and six letters of support from a financial consultant, family friends and fellow Reserve Officers, and a letter of support from the family's pastor.  In addition, the applicant submitted a case which her MOC termed a "similar case that was favorably overturned."

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 AR2004103108 on 26 October 2004.

2.  The evidence in this case also shows the applicant applied for reconsideration of her originally denied request for the correction of the FSM's records to show he had elected to participate in the RCSBP, and had elected Option B, in conjunction with his 20-Year Letter, and that an annuity be established for her.  The evidence shows that the applicant's first request for reconsideration of the Board's decision (Docket Number AR20070006660) was administratively closed, on 12 July 2007, because she had exceeded the one year time frame allowable for the submission of a request for reconsideration of a denied request.

3.  The evidence also shows that the applicant again submitted a second request for reconsideration of the Board's decision (Docket Number AR20070012611).  This request for reconsideration was also administratively closed on 6 December 2007 because the applicant had not submitted her request for reconsideration with new argument and/or evidence within the allowed time frame of one year as provided for by the applicable regulation.

4.  The evidence shows the FSM was born on 18 March 1943.  He was married to the applicant on 25 January 1964.  The FSM's Chronological Statement of Retirement Points shows the date he entered the Army of the United States and served on active duty for the period from 28 September 1966 through 20 September 1967.  The evidence shows the FSM was appointed a Reserve commissioned officer on 21 September 1967, with concurrent call to active duty.  He was released from active duty on 27 August 1970 to attend school and was transferred to the USAR Control Group.  The FSM continued to serve as a member of the Army Reserve for a full military service career and was promoted to lieutenant colonel on 15 March 1982.

5.  On 1 December 1987, the US Army Reserve Personnel Center, St. Louis, Missouri, issued a letter to be dispatched to the FSM notifying him of his eligibility to receive retired pay at age 60 (his 20-Year Letter).  The notification advised him he was now entitled to participate in the RCSBP established by Public Law 95-397.  This plan, the letter advised the FSM, enabled him to provide an annuity for his spouse and other eligible beneficiaries.  He was instructed that "UPON RECEIPT OF THIS LETTER OF NOTIFICATION OF ELIGIBILITY FOR RETIRED PAY AT AGE 60,YOU HAVE 90 DAYS IN WHICH TO ELECT TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN OR REMAIN UNCOVERED BY THE PLAN UNTIL YOU BECOME 60 YEARS OLD AND ARE AGAIN AFFORDED THE OPPORTUNITY" (emphasis in the original).  The notification informed him that more detailed information concerning participation in the RCSBP and an Election of Options form for this purpose were contained in an enclosed pamphlet which accompanied the notification letter.

6.  The form used for making an individual's RCSBP option known at the time the FSM received his notification of eligibility, was the DD Form 1883, Survivor Benefit Plan Election Certificate.  On the reverse of the form, after an explanation of the options, the form had a note which stated, "If retiree does not elect Option B or C at this time, and should die before age 60, the survivors will not receive benefits under Public Law 95-397."  By operation of law, if an individual selected option A, they signaled their intent to decline enrollment in the RCSBP and choose at age 60 whether to start SBP participation.  Selection of this option, by operation of law, was the same as if an individual either deliberately or unintentionally did not complete or submit a DD Form 1883.  In effect, the individual who did not complete a survivor benefit plan election certificate left their spouse and other eligible beneficiaries exposed to the loss of any entitlement to benefits under the Survivor Benefits Plan.

7.  The FSM's Chronological Statement of Retirement Points shows he was transferred to the Retired Reserve on 13 January 1996.

8.  The evidence shows the FSM would have reached age 60 on 18 March 2003. The FSM died on 10 March 2003 of an acute myocardial infarction just eight days short of his 60th birthday.

9.  On 12 March 2003, the Army Human Resources Command, St. Louis, was notified of the FSM's death.  At that time his "1883 File" was pulled and reviewed. The FSM had a 90-day letter in the folder which stated, "No RCSBP" indicating the FSM had not made an SBP election.

10.  On 9 April 2003, a representative of the DFAS Special Actions Section called the Army Human Resources Command, St. Louis, and inquired if the FSM had enrolled in SBP.  This representative was advised that the FSM had been issued his 20-Year Letter in 1988 but had not enrolled in SBP.

11.  In an "archived" letter, dated 21 April 2003, which was written to another MOC on behalf of the applicant by the Director, Military and Civilian Pay Services, Defense Finance and Accounting Service, it clearly states the Army Reserve Personnel Command notified the FSM of his eligibility to receive retired pay benefits when he reached the age of 60 years.  The letter which was sent, according to the Defense and Accounting Service's letter, by certified mail, was delivered to the FSM on 7 January 1988.

12.  In the "archived" letter, the FSM was also notified of his eligibility to participate in the RCSBP.  The "archived" letter to the other MOC the applicant had previously contacted for assistance states she and the FSM were sent additional letters on 26 January 1989, and no reply was received from either of them.

13.  At the time the applicant's first application to the Board was being processed, a member of the ABCMR Staff inquired of the Transitions and Separations Branch, U.S. Army Human Resources Command, St. Louis, if the FSM had applied for retired pay.  This staff member was informed the FSM had not applied for retired pay.  Based on this response, it can logically be assumed that he also did not return his completed DD Form 1883 and did not apply for an annuity for the applicant since these two actions are accomplished simultaneously.

14.  On 14 January 2004, the applicant prepared and submitted a notarized statement in her own behalf for submission with her original application to the Board for an RCSBP annuity.  In this statement, the applicant stated that before his unexpected death, the FSM had mentioned many times how he had planned to provide an income for her from his Army retirement in case anything happened to him.  Any time she would ask him what she would do if he was not here to take care of things, he would always reply that she would be taken care of because of his military retirement.

15.  The applicant stated at the time her notarized statement was prepared that the FSM did not have life insurance, or any form of non-Army retirement benefits to leave her; and therefore, her income was below the poverty level without his retirement which she had counted on.  At 58 years of age, at that time, and suddenly widowed, without the necessary skills or health to pursue employment to sustain herself, she pleaded for the Board's consideration in granting her the FSM's retirement for which they had worked for over 30 years.  She concluded that the sacrifices the FSM made in order to serve his country and the sacrifices she made in order for him to be away from their home, family, and business, were great enough and she felt that consideration was warranted.

16.   In the letter of support the applicant received from the financial consultant, he requested that the applicant's case be reopened/reconsidered.  He stated the applicant's case was initially denied under the assumption that the FSM did not file his twenty year letter timely [sic Survivor Benefit Plan Election Certificate].  Since it has not been found, he stated, one could assume that it was not filed, but since the FSM was an attorney and was always very detailed in his work for the Army as well as his professional life, it seems to him that the letter could have been filed and for some reason it was not placed in the FSM's file.  It should be noted, he adds, that there is not a notice to his wife stating that he had not completed the twenty year letter at the time as required.  His intent, he concludes was to draw his retirement at age sixty after he had served thirty years in the US Army; unfortunately, the FSM had a heart attack eight days short of his 60th birthday, 10 March 2003.

17.  The financial consultant apparently reviewed letters provided by the applicant in support of her request for reconsideration of the denied case and he was convinced the FSM was looking forward to drawing his retirement benefits as soon as he turned 60 years of age.  It was his belief that the FSM had done everything possible to protect his retirement and the family he loved.  He further believed that it is ethical, moral, and justified, to correct the error that has been made and correct the FSM's file so that his widow, the applicant, may enjoy the benefits of their (30) thirty years service to our great country.

18.  In a letter from a retired Army Colonel who had been the FSM's friend and colleague for more than 30 years, he stated they first met in the spring of 1972 when they joined the Army Reserve in Austin, Texas.  At the time they were both students.  After the FSM graduated from law school, he and his now widow, the applicant, returned to their home town of Atlanta, Texas, where they made a wonderful life together with their two children.  Everyone who knew them must have envied their tender, loving relationship.  The applicant always displayed a supportive and understanding attitude towards the FSM's service and the time commitments it demanded.  The FSM and his spouse lived a life of service to others in both the FSM's military career and in their local community.

19.  The FSM's friend and colleague states he and the FSM discussed the issue of retirement pay and spousal benefits more than once over their years of friendship. The FSM was aware of the value of his Army Reserve retirement benefits to himself and to his wife, the applicant.  It was a major part of their retirement plans. He also understood and appreciated the applicant's unselfish contributions to his long and successful Army Reserve career.  He summarizes by stating he does not know the particulars of any of his military records when he died; but, it would be completely out of character for the FSM to have left his spouse without any Army retirement benefits.  He would never have knowingly or intentionally deprived his spouse of any benefits from his long Army service.

20.  The applicant was provided a letter by another family friend.  In this letter, he stated he had met the FSM when his family moved to Atlanta, Texas, in 1988. Their families quickly became best of friends since they were the same age, had served in the military, and their daughters were the same age and best friends in school.  As a Navy veteran he had a friendly rivalry every year with the FSM for the Army-Navy game.  They talked about their service and their experiences.  The FSM was extremely proud of continuing in the Reserve and serving our country.  He adds that shortly after the FSM's retirement, he commented to him that should he die before him [the friend], for him to be sure to have him buried in his full dress blue uniform….if it still fit.  The FSM, he states, was buried as he wished, with full military honors. 

21.  The family friend summarizes by stating that in his wildest dreams, he could not fathom that the FSM would have ever intended for his wife to ever live without the benefits he had earned serving his country.

22.  In a letter from a retired Army Lieutenant Colonel who had been the FSM's friend and colleague and who had served in the Army Reserve for more than 20 years, including an extended mobilized tour of duty during Operation Desert Storm, he states that the FSM was an attorney by profession and was one of the most meticulous and detail oriented people he had ever known.  This of course made him a fine officer and leader.  His attention to detail and thoroughness in every task made him a valuable partner in accomplishing any mission.  This attention to detail and thorough manner was evident in his personal life also.  Because they were close friends, he got to know his family and his personal habits.  He had boxes of files and records and tended to his personal affairs in the same manner as he did his military responsibilities.  Simply put, he took care of everything; no detail went unnoticed or unattended – always.

23.  This family friend, the FSM's colleague states that he is absolutely certain about how important the selection of a retirement benefit option was to the FSM. The FSM used to conduct many briefings and in these briefings, he talked about such things and strongly emphasized the importance of selecting the right option for our families.  He cannot point out a single conversation with the FSM where they discussed this subject but they most certainly did, he states.  "I just do not remember it.  I can tell you that my memory is absolutely clear on many, many times when" they would be discussing retirement from the military, how they would handle it, what options they would select and how much money they would draw. He summarizes by stating it is his clear recollection they were in one accord on the subject.  They would take some joint survivor type option that would provide for their loved ones.  There is no doubt at all about what he remembers on this.

24.  In a letter from a retired Army Major who served with the FSM and later became a family friend, he describes the nature of their relationship and military service together.  He describes the FSM as a very detailed oriented person.  He adds that he cannot believe that the FSM failed to prepare and file whatever paperwork was necessary to provide a portion of his military benefits for his wife in the event of his early death.  He never spoke with him directly on the matter but the FSM did tell him that he was pleased that his service would help provide them a secure retirement income.

25.  This family friend summarizes by recommending that if the FSM's application for survivor benefits cannot be found, he believes that must be from some cause outside the FSM's control and he further recommends the review process handle it in that manner.

26.  In a letter dated 22 August 2007, a friend of the FSM stated he had known the FSM for most of his life.  They attended school together and served in the Army Reserve together.  A more honest and dedicated man never existed.  He loved his God, his country, his family, and his fellow man, in that order.

27.  He adds that as small business owners, they had the freedom of lunching together several times a week.  They would discuss various topics, from things going on in the Reserve to world events; however, one day when he was picking up the FSM for lunch, he had remarked, "'What's going on in your world today?'  The FSM's answer was, 'Working on my retirement package.'"  Several weeks later this friend asked if he had gotten his retirement package finished.  The FSM's answer was, "It's in the mail."

28.  This family friend adds that the FSM loved his family, and in his mind, was doing this for them as much as for himself.  He had looked forward to getting his retirement for some time.  When he heard that his family would not be getting his retirement, all he could think of was thirty years of devotion and care about his country and this is how it's going to be repaid.  His family also sacrificed for his love of duty and country.  He ends his statement of support by stating, "This would truly be an injustice if his sacrifice and theirs is not to be compensated."

29.  The FSM's and his family's pastor states that the FSM was a man of utter integrity and impressive organizational and administrative abilities.  He was a dedicated father and husband and very proud to be a part of the United States military.  Sadly, his life was cut short just before his 60th birthday.  The pastor states he is sure that even then he was planning for his future as a retired military officer.  He and his wife had looked forward to what his military retirement would provide for them.

30.  The pastor concludes his statement by adding that their church is proud of the service the FSM rendered our country and he would request that the Board do all in its power to see to it that his wife, the applicant, is cared for in an honorable way.

31.  In the letter of transmittal from the applicant's MOC, he has respectfully requested review and reconsideration of the denial and provides as evidence a similar case that was favorably overturned.  The MOC states that this case creates a precedent and he is optimistic the same should happen in the applicant's case.

32.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

33.  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:  (Option A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (Option B) elect that a beneficiary receive an annuity if the member dies before age 60 but delay payment of it until the date of the member’s 60th birthday; (Option C) elect that a beneficiary receive an annuity immediately upon a death, if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  Before the law was amended, as noted below, a member was required to make an election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until they 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.

34.  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.

35.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.

36.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  

37.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records.  The ABCMR decides each case on the merits of the evidence of record.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity. 

DISCUSSION AND CONCLUSIONS:

1.  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 or that would support amendment of the original Board decision in this case.

2.  The evidence of record shows the FSM's 20-Year Letter was prepared on 1 December 1987.  The letter was sent to the FSM by certified mail and he received it on 7 January 1988.

3.  In his 20-Year Letter, the FSM was advised he was now entitled to participate in the RCSBP established by Public Law 95-397.  This plan, the letter advised the FSM, enabled him to provide an annuity for his spouse and other eligible beneficiaries.  He was instructed that, "Upon receipt of this letter of notification of eligibility for retired pay at age 60, you have 90 days in which to elect to participate in the survivor benefit plan or remain uncovered by the plan until you become 60 years old and are again afforded the opportunity."

4.  The FSM was told that more detailed information concerning participation in the RCSBP and his election of options was contained in a pamphlet which had been enclosed with his notice.

5.  The evidence shows that in an "archived" letter on file at the Defense Finance and Accounting Service, after distribution of the 20-Year Letter to the FSM, both the FSM and the FSM's spouse were sent additional letters on 26 January 1989 to which no reply was received.

6.  There is no evidence the FSM ever completed and submitted a DD Form 1883 to indicate his preference insofar as his enrollment in the RCSBP was concerned.

7.  The evidence shows that after the FSM's death, the Army Human Resources Command was contacted twice to determine if he was enrolled in the RCSBP.  Both times the answer was the same, the FSM had not enrolled in the RCSBP at the time he was notified he was eligible to participate in the RCSBP.

8.  The available evidence of record shows the FSM never applied for retired pay.  Application for retired pay is normally made 6 to 12 months prior to reaching age 60.  Had he done so, it is logical to assume that he would also have completed a Survivor Benefit Plan Election Certificate since it is apparent he did not complete one at the time, or shortly after he was provided his 20-Year Letter. 

9.  The letters of support provided the applicant by the consultant, friends of the FSM and his fellow officers, and the FSM's pastor were considered.  Although each of the applicant's supporters described the FSM as a highly detail-oriented, responsible individual who was very meticulous in all he did, only one claims to have gotten to know the FSM's personal habits and saw that he had files and records and tended to them and to his personal affairs in the same manner as he did his military responsibilities.  However, none of the applicant's supporters indicated they ever saw the Survivor Benefit Plan Election Certificate the FSM was required to submit to provide his spouse an annuity at the time of his death, either prior to or after he began receiving retired pay benefits.

10. The applicant has submitted a request for this same action four separate times.  At no time has she ever submitted a copy of the application for retired pay the FSM was supposed to submit from 6 to 12 months prior to his reaching his 60th birthday.  At no time has she submitted a copy of a Survivor Benefit Plan Election Certificate if one was prepared and submitted to either the Army Human Resources Command or to the Defense Finance and Accounting Service.

11.  As indicated in the Record of Proceedings for the applicant's initially denied case, Docket Number AR2004103108, the FSM had two further opportunities to enroll in the RCSBP prior to reaching the age of 60.  There is no evidence to show he attempted to enroll in the RCSBP during either the 1992 or the 1998 Open Season.  It appears he again made a conscious decision to take a chance and wait until he reached age 60.  Unfortunately, he died eight days prior to his 60th birthday.

12.  The SBP is an insurance program.  SBP enrollment must be voluntarily elected by the military member and participation requires the payment of premiums.  Since there is no evidence to show the FSM applied for retired pay, there is no evidence to show he intended to participate in the SBP once he became eligible for retired pay.

13.  It is acknowledged that the law was changed in 2000 to require a spouse's concurrence for a Reserve member to defer his or her SBP decision until age 60. However, the law is applicable to cases where 20-Year Letters have been issued after 1 January 2001 and Congress made no provisions to make the law retroactive.

14.  The case the MOC termed "similar that was favorably overturned" and which the MOC believed created a precedent was reviewed; however, the ABCMR considers each application that is properly brought before it.  It begins its consideration of each case with the presumption of administrative regularity.  In the case of requests for reconsideration, the Board evaluates all available evidence - the originally submitted evidence, the evidence of record, and all new evidence and/or argument an applicant presents.  The Board does not rely on precedent in matters of equity and operates on the principle each case submitted to the Board for a decision must stand on its own merits.

15.  Regrettably, based on all the available evidence, and 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

___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 AR2004103108, dated 26 October 2004.




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          CHAIRPERSON



INDEX

CASE ID
AR20080001384
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.
137.0100
3.
137.0400
4.

5.

6.