IN THE CASE OF:	  

		BOARD DATE:	  	  11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080008680


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, the widow of a deceased former service member (FSM), requests, in effect, correction of the FSM’s former legal mailing address and enrollment and participation in the Reserve Component Survivor Benefit Plan (RC-SBP).

2.  The applicant states that the late FSM was not given the opportunity to enroll and participate in RC-SBP in 1992.

3.  The applicant provides copies of their marriage license, his death certificate, U.S. Army Reserve Personnel Center Notification of Eligibility for Retired Pay at Age 60 memorandum, U.S. Army Reserve Personnel Center notification of ineligibility for RC-SBP memorandum, Internal Revenue Service (IRS) Form W-2 (Wage and Tax Statement) for 1992, IRS Office of Management and Budget (OMB) Form 1545-0901 (Mortgage Interest Statement) for 1992, and U.S. Army Human Resources Command (ARPC) Form 249 (Chronological Statement of Retirement Points) in support of this application.

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 military service records show that he enlisted in the Regular Army and entered active duty on 21 June 1968.  He completed basic training and advanced individual training and was awarded the military occupational specialty 62B (Engineer Equipment Maintenance).

3.  The FSM’s DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the applicant’s date of birth as 23 February 1950.

4.  State of Delaware Certificate of Marriage, dated 9 November 1968, shows that the FSM was married on that date.  This certificate shows his date of birth as 23 February 1950.

5.  The FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was honorably separated from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) upon expiration of his term of service on 18 June 1971.  His DD Form 214 shows that he served a total of 2 years, 11 months, and 28 days of creditable active military service during this period.  The highest rank he achieved was specialist five/pay grade E-5.

6.  The FSM’s military service records show that he reenlisted in the U.S. Army Reserve on 21 June 1974.

7.  U.S. Army Reserve Personnel Center Notification of Eligibility for Retired Pay at Age 60 memorandum, dated 4 February 1992, shows that the FSM was notified that he completed the required years of service for eligibility for retired pay at age 60.  This memorandum also shows that he was notified that he was entitled to participate in the RC-SBP.  It states that, by law, the FSM had 90 calendar days from the date of receipt of this memorandum to submit his survivor benefit plan election certificate.  Failure to submit an election within 90 calendar days excluded survivor benefit coverage until he submitted his application for retired pay at age 60.  This memorandum states that if he did not elect coverage and died before age 60, there would be no benefits for his survivors.  A hand-written entry presumed to be that of the applicant states, in effect, that the delivery address does not exist as shown for Newark, Delaware.

8.  IRS Form W-2 for 1992 shows the FSM’s address as Rehoboth, Delaware, in 1992.

9.  IRS OMB Form 1545-0901 for 1992 shows the FSM’s address as Rehoboth Beach, Delaware, in 1992.

10.  U.S. Army Reserve Personnel Center notification of ineligibility for RC-SBP memorandum, dated 28 August 1994, shows that the applicant was advised of her ineligibility for RC-SBP coverage as a result of the FSM’s decision not to return the election form.  This memorandum states that the RC-SBP materials were mailed to the FSM and received on 28 October 1993.  The 90-day time period to submit his coverage election specified by law expired on 28 January 1994.  She was advised that the FSM remained eligible to elect coverage under the standard SBP upon applying for retired pay at age 60.  A hand-written entry presumed to be that of the applicant states, in effect, that the delivery address shown for Rehoboth, Delaware, was correct in 1992.

11.  99th Regional Support Command Orders 228-6, dated 15 August 1996, show that the FSM was involuntarily reassigned from the Selected Reserve by reason of maximum length of service and assigned to the Retired Reserve effective 2 August 1996.

12.  State of Delaware Certificate of Death, dated 15 September 2006, shows that the FSM was pronounced dead on 9 September 2006.  This certificate shows the FSM’s date of birth as 23 February 1950 and age at death as 56 years old.  This certificate also shows that the FSM was survived by his spouse.

13.  ARPC Form 249 shows that the FSM completed 26 qualifying years of service for retirement.  This form shows the FSM’s address as Rehoboth Beach, Delaware.

14.  The Uniformed Services Contingency Option Act (USCOA) of 1953 was the first law to permit military members to receive reduced retired pay during their lifetime in return for ensuring that their widows and eligible children would receive an annuity after their death.  Public Law 87-381 of 1961, replaced the provisions of the USCOA with the Retired Serviceman’s Family Protection Plan (RSFPP).

15.  Public Law 92-425, enacted 21 September 1972, terminated the RSFPP and created the Survivor Benefit Plan (SBP).  Under SBP, each member entitled to retired or retainer pay with eligible dependents is entitled to participate in the program.  Public Law 95-397 extended coverage under the SBP to members of Reserve Components who would be eligible for Reserve (Non-Regular Service) retired pay except for being under 60 years of age.  Under the SBP program, retired members are required to pay monthly premiums in the form of a deduction from their retired pay.  In general, these premiums will be deducted throughout a member’s lifetime unless the retiree terminates or withdraws from annuity coverage, or during any period in which the member does not have an eligible beneficiary.

16.  Public Law 105-261, enacted 17 October 1998, established an SBP Open Season to be conducted from 1 March 1999 through 29 February 2000.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time lump sum enrollment premium.  Extensive publicity was given in Army Echoes.  Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP, and whose retired pay was fairly high, the enrollment premium alone could exceed $50,000.

17.  Public Law 108-375, enacted 28 October 2004, established an SBP Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of the FSM’s former legal mailing address and enrollment and participation in the RC-SBP was carefully considered and determined to be without merit.

2.  U.S. Army Reserve Personnel Center Notification of Eligibility for Retired Pay at Age 60 memorandum shows that the FSM was notified that he was entitled to participate in the RC-SBP.  This memorandum clearly states that if he did not elect coverage and died before age 60, there would be no benefits for his survivors.  Although the applicant contends that the delivery address does not exist as shown, she does not contest receipt of the memorandum or the record of receipt date of 28 October 1993 as stated in her notification of ineligibility, nor does she offer an explanation for her ability to provide a copy of the memorandum in spite of the alleged address error in support of this application.

3.  The FSM neglected two additional opportunities to enroll in the RC-SBP during the open enrollment seasons conducted from 1 March 1999 through 29 February 2000 and 1 October 2005 through 30 September 2006.

4.  U.S. Army Reserve Personnel Center notification of ineligibility for RC-SBP memorandum shows that the applicant was directly advised of her ineligibility for RC-SBP coverage as a result of the FSM’s decision not to return the election form.  This memorandum clearly states that she would not be entitled to any 
RC-SBP benefits if the FSM’s death occurred prior to age 60.

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 for correction of the records of the individual concerned.



      ____________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)                                         AR20080008680



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ABCMR Record of Proceedings (cont)                                         AR20080008680



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