IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080010567 


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), makes her request through counsel.

2.  The applicant makes her statements through counsel.

3.  The applicant provides records through counsel in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's request that the FSM's military records be corrected to show that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) be reconsidered.

2.  Counsel states that the previous decision by the Army Board for Correction of Military Records (ABCMR) placed emphasis on the fact that the Army Echoes publication consistently contained a reminder to retirees that they are responsible for changing their survivor benefit status within 1 year of marriage.  Counsel also states in the FSM's case, he could not have begun receiving the Army Echoes publication until after his retirement on 7 November 2001 [the FSM's retirement was actually in October 2001, but the orders were not dated until 7 November 2001].  Counsel further states that the FSM did make an election for spousal 
coverage on 10 October 2002, which was within 1 year of the time he would have 



begun receiving the Army Echoes publication.  Counsel continues by essentially 
stating that he is a retired member of the Texas Army National Guard as well as a former commander, and that he can state unequivocally that in his case, he was never given any type of briefing on the rules concerning the RCSBP.  He further states that he has spoken to others, and that this is not an isolated case of things of this nature happening.  He also believes that a lack of command emphasis on this type of matter has probably led to many situations where surviving spouses have been denied a benefit and that the rules seem to penalize a retiree's spouse because of a command failure.

3.  Counsel also believes that the election form that the FSM made upon receiving notification of his eligibility to receive retired pay at age 60 after he had accumulated the requisite number of years of service and points would have led a reasonable person to believe that an election could not be changed until age 60.

4.  Counsel further states that he enclosed a copy of a personal transcript, dated 22 January 1999.  However, this document was not among those forwarded in support of this application.  Additionally, he calls attention to the portion of the
DD Form 1883 (Survivor Benefit Plan Election Certificate) for coverage under Option A (I decline to make an election at this time [I will remain eligible to make an election for coverage at age 60]), and states that this statement led the FSM to believe that the option could not be changed until age 60.

5.  Counsel provides a self-authored letter, dated 29 April 2008, addressed to the ABCMR; and orders, dated 7 November 2001, which honorably released the FSM from the Army National Guard on 1 October 2001 and transferred him to the Retired Reserve in support of this application.

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 ABCMR in Docket Number AR20070007875, on 11 December 2007.

2.  The FSM was single when he was issued his 20-year letter on 11 January 1998 and when he submitted his DD Form 1883 and elected Option A (elect to decline election until age 60).  He married the applicant on 11 March 2000.  Orders dated 7 November 2001 discharged him from the Texas Army National Guard and was transferred to the Retired Reserve effective 1 October 2001.  On 1 October 2002, he completed a DD Form 2656-6 (SBP Election Change Certificate) in which he designated his wife to receive full coverage.  However, that form was not received at the Human Resources Command in St. Louis until 23 October 2006.  Meanwhile, the FSM died on 27 November 2005, at the age of 52. 

3.  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 (and participate in SBP), 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.  

4.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child, may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by the applicant through counsel was carefully considered.  However, 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, through counsel, has failed to submit evidence that would satisfy this requirement.

2.  Counsel's contention that the previous decision by the ABCMR placed emphasis on the fact that the Army Echoes publication consistently contained a reminder to retirees that they are responsible for changing their survivor benefit status within 1 year of marriage was noted.  However, it was not so much 
emphasized as it was noted that this publication is one means of communicating 

with the retired community.  The fact that the FSM may not have received an issue of Army Echoes which contained an article regarding SBP or the need to keep his records current does not establish that an error or injustice occurred. 

3.  Counsel's contention regarding his own experience with the SBP was also noted; however, counsel's own experience with the SBP does not have a direct bearing on this case.  Additionally, the fact that the FSM completed a change in election 2 years after his marriage to the applicant is indicative that he did not believe that he had to wait until age 60 to add his spouse, as counsel suggests.  Unfortunately, he still did not make his election within the 1-year timeframe required by the law and he did not submit that form to the appropriate agency while he was still alive.  

4.  The law provides that a person who marries subsequent to the execution of a DD Form 1883 may, within 1 year of the date of marriage, change his or her RCSBP election.  Based upon the marriage between the applicant and the FSM 
on 11 March 2000, and the fact that he did not attempt to make a change to his SBP election until 1 October 2002, the FSM failed to make a timely election to change his RCSBP as required by law.  

5.  Regrettably, in view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 AR20070007875, dated 11 December 2007.

2.  While the Board regrets that a more favorable response could not be accomplished, it wishes to extend its deepest condolences to the applicant on the passing of her late husband.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      ________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)                                         AR20080010567



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010567



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1