IN THE CASE OF:	  

		BOARD DATE:	  13 August 2008

		DOCKET NUMBER:  AR20080004939 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, 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) and that she be provided a SBP annuity based on the FSM's death.  

2.  The applicant states, in effect, that the FSM was transferred to the Retired Reserve after 15 years of service due to medical reasons, and died approximately 3 years later.  She claims the SBP annuity is being denied her because she lost the SBP Election Certificate (DD Form 1883) completed by her husband.  She states that the FSM showed her the paperwork indicating she was his beneficiary and she had the DD Form 1883 in her possession until her home suffered sewer water damage in the basement, which destroyed her copies of the FSM's military records.  She now requests she be granted the annuity due her based on the death of her husband.  She claims that even though she is unable to provide the DD Form 1883, the responsible military officials have also lost her husband's records and are unable to provide her any indication that SBP regulations were complied with during the processing of her husband during his transfer to the Retired Reserve.  


3.  The applicant provides the following documents in support of her application: 88th Regional Readiness Command, Chief of Administrative Law Memorandum of Support, dated 9 January 2008; United States Army Reserve Personnel Command (ARPERSCOM), Chief, Transitions and Separations Branch Letter, dated 12 April 2005; National Personnel Records Center (NPRC) Letter, dated 21 December 2006; Illinois Army National Guard (ARNG) Military Personnel Office (MILPO) Electronic Mail (e-mail) Message, dated 17 July 2007; FSM Discharge Orders; FSM Death Certificate; Marriage Certificate; and Previously Submitted ABCMR Application (DD Form 149) and Army Review Boards Agency Letter, dated 12 July 2005.  

CONSIDERATION OF EVIDENCE:

1.  The FSM's record contains an ARNG Retirement Points History Statement that indicates he served in the ARNG from 13 December 1983 through 28 May 1999, and that he earned a total of 1252 retirement points and accrued 15 years of qualifying military service for retirement purposes.  

2.  On 3 April 1998, the applicant and FSM were married.  

3.  On 28 May 1999, the FSM was discharged from the ARNG and transferred to the United States Army Reserve (USAR) Control Group, Retired Reserve, in the rank of staff sergeant (SSG).  This action was authorized in ILARNG Orders Number 101-369, 26 May 1999, which contain a transaction code that confirms the reason for the action was the FSM's "Early Qualification for Retired Pay at Age 60 (Involuntary-Medically Disqualified)."  

4.  On 3 September 2003, the FSM died at the age of 54.  

5.  On 12 April 2005, the ARPERSCOM Chief, Transition and Separations Branch, informed the applicant by letter that in order for her to qualify for a SBP annuity, the FSM would have had to enrolled in the Reserve Component (RC) SBP, and that when the FSM passed away on 3 September 2003, the Adjutant General of the ILARNG failed to provide them with a copy of the FSM's SBP Election Certificate (DD Form 1883), which he had 90 days to complete and return.  This official informed the applicant that since the FSM had received the 15-Year Letter prior to 1 January 2001, she was not automatically covered, and they could only assume the FSM failed to complete and return this form.  Therefore, she was not eligible to receive the SBP annuity based on the service of her late spouse.  The applicant was advised that her only recourse was to apply to this Board for relief.    


6.  The ILARNG Retirement Points Accounting Supervisor completed a Memorandum for Record (MOR) on 14 July 2007.  This document confirms the FSM was a member of the ILARNG from 13 December 1983 through 28 May 1999.  It further shows that at the time of his discharge from the ILARNG, the FSM had completed a total of 15 qualifying years of military service for
non-regular retired pay.  It also verifies that the FSM was involuntarily separated with early eligibility for retired pay at age 60, and should have been issued a notification of eligibility for retired pay at age 60 ("15 Year Letter").  This official further confirms that upon receipt of the notification of retirement eligibility, the FSM would have been given a 90 day requirement to make a SBP election.  He also states that at some point after the FSM's discharge from the ILARNG, the State archive file was lost there are also no record on file on the FSM at the NPRC.  Finally, according to ILARNG records, a "15-Year Letter" on the FSM was produced; however, there is no record confirming the letter was ever sent to or received by the FSM.

7.  On 9 January 2008, the 88th Regional Readiness Command, Chief of Administrative Law provided a memorandum in support of the applicant's request.  This official stated that after 15 years of qualifying service, the FSM was found medically unfit for further service and was transferred to the Retired Reserve on 28 May 1999.  He states the applicant claims her husband showed her the SBP election listing her as beneficiary; however, water damage to her basement where the FSM's record were kept resulted in the loss of most of the FSM's military records.  He states that after the applicant sought out his assistance to obtain proof of her entitlement to SBP benefits, they both ran into numerous road blocks.  He states that he requested the applicant obtain copies of the FSM's military records; however, every office they contacted could not find records on the FSM.  He claims the NPRC confirmed they had no records on the FSM, and the ILARNG also could not find military records on the FSM, but did confirm the FSM had 15 qualifying years for retirement purposes and that he was involuntarily separated due to a medical disqualification.  He further indicates that a letter from the ARBA, dated 12 July 2005, it was further confirmed that the FSM's record could not be located.  This official concludes by stating that given the military's failure to maintain the FSM's records, and to follow its regulations regarding SBP counseling and processing, the applicant should receive SBP benefits as a matter of fairness and equity.


8.  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 or 15-Year Letter) or else wait until he/she applied for retired pay at age 60 and elect to participate in the standard SBP.  

9.  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 notification letter was issued after 1 January 2001.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive the SBP annuity based on the death of the FSM was carefully considered and found to have merit.  

2.  The evidence of record confirms that at the time of his involuntary transfer to the Retired Reserve, due to medical disqualification on 28 May 1999, the FSM was granted early qualification for retired pay at age 60 based on completion of 15 qualifying years for non-regular retirement purposes.  The FSM's records were lost by the ILARNG and are not available through the NPRC, which would indicate that even if the FSM had properly completed and submitted a DD Form 1883 within 90 days of receiving his 15-Year Letter, this document would have been lost along with the FSM other military records.  

3.  The applicant indicates the FSM showed her documents indicating she would receive the SBP benefit as his beneficiary, and that these documents were lost due to water damage to the portion of her home where the FSM's records were kept.  Further, although the ILARNG records confirm a 15-Year Letter was published on the FSM, these records fail to confirm this notification letter was ever sent to or received by the FSM, or that he was ever counseled regarding his SBP election and/or afforded the opportunity to submit a DD Form 1883 within 
90 days of receipt of the notification letter.  


4.  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.  

5.  The facts and independent evidence provided makes it as reasonable to conclude the FSM intended to provide RCSBP protection for his spouse and that the documents were likely lost or that he never received the DD Form 1883, as it is to conclude the FSM had no intent to provide RCSBP protection to his spouse and failed to submit the DD Form 1883 within 90 days of receiving his 15-Year Letter, as is the presumption made based on the lack of records.  Therefore, given the applicant's transfer to the Retired Reserve was for medical reasons and it is highly unlikely he would have failed to provide SBP protection for his spouse at the time had he been given the opportunity, it would be appropriate and 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.  

6.  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 15-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 3 September 2003, minus any SBP premiums due from 28 May 1999, the date of his election, through 2 September 2003, the date of his death.

BOARD VOTE:

____x___  ___x____  ___x____  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 the FSM submitted his RCSBP Election Form within 90 days of receipt of his 15-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 3 September 2003, the date of the FSM's death, minus any premiums due from 28 May 1999 through 3 September 2003.  




      _______ _ x  _______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004939



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ABCMR Record of Proceedings (cont)                                         AR20080004939



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