IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080008253 


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 was married to the FSM for 23 years during his military service from January 1972 to January 1997 and that in their divorce agreement, the FSM agreed to execute any documents to ensure the applicant received a military pension and benefits.  She also states that she was grieved by their divorce, his death, and her illness and did not know how to file a claim for benefits.

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

	a.  The FSM's DD Form 214 (Report of Separation from Active Duty), dated 20 December 1973.

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

	c.  Letter, dated 7 April 2008, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, denying SBP benefits.  

	d.  Local Form 9 (Biographical Sketch), dated 5 July 1991.  

	e.  Reassignment Orders 118-4, dated 28 April 1995, Headquarters, 80th Division, Richmond, Virginia.  

	f.  Chronological Statement of Retirement Points, dated 10 March 1995 and 2 April 1996.  

	g.  Discharge Orders D-11-697498, dated 14 November 1996.  

	h.  Notification of Eligibility for Retired Pay at Age 60, dated 21 July 1995.

	i.  Discharge Orders 38-212, dated 2 March 1977, Headquarters, First U.S. Army.

	j.  Honorable Discharge Certificate, dated 7 January 1977.

	k.  FSM’s Servicemen’s Group Life Insurance and Election, dated 15 October 1995.  

	l.  FSM’s Certificate of Death, dated 27 March 1999. 

	m.  Marriage Certificate, dated 20 September 1974.

	n.  Attorney correspondence, dated on miscellaneous dates in 1997.     

	o.  Divorce Agreement, dated 20 November 1997.

	p.  Report of Divorce or Annulment, dated October 1995.

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 25 October 1950 and enlisted in the Regular Army for a period of 3 years on 8 January 1971.  He held military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman) and attained the rank/grade of sergeant (SGT)/E-5.  He was honorably released from active duty on 20 December 1973 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).   

3.  On 20 September 1974, the FSM married the applicant.

4.  On 7 January 1977, the applicant was discharged from the (USAR) Control Group (Reinforcement) and subsequently executed a one-year reenlistment in the USAR on 8 January 1977 and two three-year reenlistments on 8 January 1978 and 14 December 1980.    

5. On 22 June 1983, the applicant was appointed a commissioned officer, in the rank second lieutenant (2LT), in the Infantry Corps of the USAR.  He executed an oath of office on the same date.  He was promoted to first lieutenant (1LT) on 2 June 1986 and captain (CPT) on 15 December 1988.

6.  On 21 July 1995, 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.

7.  There is no evidence in the FSM's records which shows that he elected to participate in the RCSBP during his 90-day window of opportunity in 1994.

8.  In October 1995, the FSM and applicant were separated and on 20 November 1997, they were divorced.  The divorce agreement stated that "In the event that any election of survivor benefits on this military pension has been made in favor of Wife or still can at some future date be made in favor of Wife, if not previously made, Husband agrees to make said designation and further agrees to execute any and all documentation necessary to accomplish her entitlements thereto." 

9.  On 14 June 1996, the applicant was voluntarily reassigned from his unit, the 80th Division, Richmond, Virginia, to the USAR Control Group (Reinforcement), effective 31 July 1996.  He was subsequently honorably discharged from the USAR, effective 15 November 1996.   There is no indication in his records that he requested to be transferred to the Retired Reserve.

10.  On 27 March 1999, the FSM died at the age of 48.

11.  On 7 April 2008, the Chief, Transition and Separation Branch, HRC-St. Louis, Missouri, notified the applicant that: 

	a.  the FSM was mailed a Survivor Benefit Plan Election Certificate, DD Form 1883, on 12 July 1995, and that under Public Law 93-397 he had 90 days to return the packet, which the FSM failed to do;

	b.  the FSM had a second opportunity to apply for the SBP annuity during the Army’s open season enrollment date of 17 May 1998, and again, he failed to apply.  His last opportunity would have been at the time he applied for retired pay at age 60;  

	c.  a person is entitled to retired pay upon application.  Accordingly, the individual must apply for his/her retired pay to receive it.  The FSM’s death on 27 March 1999, ended his opportunity to apply for retired pay and that she was ineligible to draw any portion of the FSM’s retired pay from his military service; and

	d.  the annuity claim falls under the Statue of Limitations Act, Title 39, U.S. Code, dated 2 July 1975.  The Statue of Limitations Act requires that a claim be filed within 6 years of the date it first occurred.  The FSM died on 27 March 1999 and the six year date went into effect on 27 March 2005.  Payment of any claim is denied over the six year mark.  

12.  In her self-authored letter, dated 3 April 2008, the applicant stated that she was married to the FSM for 23 years and that their divorce decree stated that she would receive $651.24 military benefits based on a formula with entitlements to cost of living increases proportional to the overall cost of living received by the FSM.  She further adds that the FSM agreed to make an SBP election in favor of the applicant and agreed to execute all necessary documentation that would entitle her to this benefit.  However, due to the grief she suffered in her divorce as well as his subsequent death, she was unable to take action regarding her benefits.  She was then involved in a severe car accident and has also been diagnosed with Fibromyalgia.  She now owes nearly $32,000 on her house and that the military entitlements would keep her afloat.    
13.  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.

14.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

15.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

16.  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.  There is no evidence in the available records and the applicant did not provide substantiating evidence that she shows she applied for a deemed election within one year of her divorce from the applicant in 1997.  Even if she had made a deemed election, her interest as a former spouse beneficiary would not have been vested as the FSM did not survive the required two years after enrollment during an open season. 

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)                                         AR20080008253





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008253



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1