IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080008110 


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

2.  The applicant states that she is unable to obtain election records such as signed spousal concurrence and/or the FSM's 20-year letter.

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Letter, dated 15 May 2008, from her Member of Congress.

	b.  Letter, dated 15 November 2006, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, denying SBP benefits

	c.  Self-authored letter, dated 3 April 2008.  

	d.  Letter, dated 27 October 2006, from the Office of the Chief of Legislative Liaison (OCLL), Pentagon, Washington, D.C.  

	e.  Letter, dated 20 September 2006, from the applicant’s Member of Congress to the OCLL.   

	f.  FSM’s Certificate of Death, dated 16 March 1996.

	g.  FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 April 1962.  

	h.  Applicant’s letter, dated 29 August 2006, to her Member of Congress.  

	i.  Applicant’s Attorney Letters, dated 28 April 2006 and 26 June 2006, to Commander, Human Resources Command, St. Louis, Missouri.   

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM’s records show that he was born on 22 October 1940 and enlisted in the Regular Army for a period of 3 years on 7 April 1959.  He held military occupational specialty (MOS) 177.10 (Air Defense Missile Crewman).  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group on 23 April 1962.  

3.  On 8 October 1972, the FSM married the applicant.

4.  After a break in service, the applicant enlisted in the USAR for a period of one year on 8 May 1976.  He subsequently executed a series of extensions and/or reenlistments in the USAR, including a one-year reenlistment on 7 May 1977, two six-year reenlistments on 27 April 1980 and 14 June 1986, and a three-year reenlistment on 8 September 1992.  He attained the rank/grade of staff sergeant (SSG)/E-6 and held several other specialties.  

5.  On 25 September 1992, the US Army Reserve Personnel Center issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter 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 BY LAW, HE HAD ONLY 90 CALENDAR DAYS FROM THE DATE HE RECEIVED THIS LETTER TO SUBMIT HIS SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DA FORM 1883).  IF HE DID NOT SUBMIT HIS ELECTION WITHIN 90 DAYS, HE WOULD NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL HE APPLIES FOR RETIRED PAY AT AGE 60.  IF HE DID NOT ELECT COVERAGE, AND SHOULD HE DIE BEFORE AGE 60, HIS SURVIVOR WOULD NOT BE ENTITLED TO BENEFITS.

6.  There is no indication in the FSM's records which shows that he elected to participate in the RCSBP during his 90-day window of opportunity in 1992.  Additionally, there is no indication in the record that the US Army Reserve Personnel Center notified the applicant that the FSM either declined coverage or did not make an election, as it is not required by law.

7.  On 14 January 1993, Headquarters, 77th Regional Readiness Command (RRC) published Orders 8-16 reassigning the FSM to the Retired Reserve, effective 14 January 1993.  

8.  On 15 March 1996, the FSM died at the age of 55.

9.  On 15 November 2006, and in response to a letter submitted by the applicant to her Member of Congress, the Director of Personnel Actions and Services at the U.S. Army Human Resources Command, St. Louis, Missouri, notified the Member of Congress that: 

	a.  Soldiers who complete 20 or more years are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP; and

	b.  Automated records show that the FSM was mailed this letter by certified mail on 29 October 1992.  The law in effect at the time, required the Soldier to make an election and return the enrollment form within 90 days of receipt and that the FSM failed to respond to this letter.   

10.  In her self-authored letter, dated 29 August 2006, to her Member of Congress, the applicant states that her husband died at the age of 55 on 16 March 1996 and that he had earlier retired from the USAR after 22 years of service.  She further added that she remembers the FSM telling her that if anything ever happened to him, she should take all his papers to the Army and apply for benefits.  She called the Army at the time to inquire about the procedure and was told she was disqualified because the FSM did not sign a special form. She also adds that the FSM was extremely organized with his paperwork.

11.  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.

12.  Title 10, U.S. Code, section 1448a(3)(B), in effect at the time, the requirement to give a spouse notice of an election was only mandated in those cases if the member provided coverage at less than the maximum level, elected children only coverage, or declined coverage.  

13.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive RCSBP benefits based on the death of her husband, a FSM, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, members must elect to participate in the RCSBP Plan. The FSM was notified that he was required to elect participation in the RCSBP within 90 days of receipt of his twenty-year letter.  The FSM's records do not indicate that he elected to participate in the RCSBP and the applicant has not provided sufficient evidence showing that he elected to participate in the RCSBP.

3.  The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.


4.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is no basis to grant the applicant's request fro RCSBP benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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 for correction of the records of the individual concerned.



															XXX
      _______ _   _______   ___
               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)                                         AR20080008110



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008110



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1