IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080011056 


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, reconsideration of her earlier petition to the Board requesting the records of her deceased husband, a former service member (FSM), be corrected to show that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.  

2.  The applicant states, in effect, that she believes the FSM did not receive the letter giving him the opportunity to change his RCSBP coverage to Option C.  She claims that the applicant was adamant about keeping his military records up to date, and had he received the form, he would have completed it and had her sign it.  She states that while trying to put away important papers pertaining to her husband's civil service/military history, she came across a file box her husband kept in his office at the Reserve Center that had not been opened.  In this box, she found an envelope with copies of beneficiary forms for all her husband's civil service and military benefits.  Included in this envelope was a 
DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) her husband submitted on or about 2 February 2000, with a cover form that indicated the form had been received by an individual at the United States Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri, on 6 March 2000.  

3.  The applicant provides a DD Form 1883, dated 2 March 2000 (with the month lined through to read February) as new evidence in support of her reconsideration request.


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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2004101899, on 
5 August 2004.  

3.  During its original review of the case, the Board found that receipt of the May 1989 or March 1992 letters from the FSM would not in and of themselves enabled the FSM to elect spouse RCSBP coverage.  It further determined that the applicant was not married to the applicant in May 1989, and therefore, he could not have elected RCSBP coverage for her at that time.  In addition, the Board concluded that by the time the 1992 letter was sent out, the FSM and applicant had been married more than a year and by law, an SBP election for spouse coverage must be made within one year of a post-retirement marriage.  The Board further determined the FSM had two other opportunities to enroll in the RCSBP for spouse coverage either during the April through March 1992 Open Season and during the March 1999 through February 2000 Open Season. The Board finally denied the applicant's request because it found no evidence that the FSM attempted to enroll in the RCSBP spouse coverage within one year after his marriage to the applicant or during either of the two Open Seasons available to him.  

4.  The applicant now provides a DD Form 1883, which appears to have been originally dated on 2 March 2000; however, the month in the date has been lined through and changed to February.  In this form, the FSM elected spouse only full coverage under Option B (Age 60).  The applicant also provides an ARPERSCOM Mail Contact Card (ARPC Form 289), which shows the DD Form 1883 was received at ARPERSCOM on 6 March 2000.


5.  The FSM's record contains a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 12 November 1996.  It also contains a DD Form 1883 completed by the FSM on 3 March 1989, in which he elected children only coverage under Option A (Defer).  

6.  The FSM and applicant married on 21 October 1989, and the applicant was listed as the FSM's beneficiary for Servicemembers' Group Life Insurance (SGLI) in an SGLV-8286, dated 15 June 2000, and for unpaid pay and allowances on a Record of Emergency Data (DD Form 93), dated 5 August 2000.  

7.  On 22 November 2003, the FSM died at the age of 55.

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 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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  

9.  Title 10 of the United States Code, Section 1448(a)(5) provides that a person who is not married or 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.

10.  Public Law 101-189 enacted 29 November 1989, established an 
Open Season to be conducted 1 October 1991 through 30 September 1992.  Public Law 101-510 enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity for these Open Seasons was given in Army Echoes, the Army bulletin published and mailed to retirees to 


keep them abreast of their rights and privileges and to inform them of developments in the Army.  Army Echoes has been provided to gray-area retirees since the 1980s. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive an SBP annuity based on the death of her husband, and the new evidence she submits, has been carefully considered.  However, the evidence of record gives no indication that the FSM ever submitted an SBP election form to cover the applicant within 1 year of their marriage on 21 October 1989, or that he submitted a valid SBP election form 
and properly applied for SBP coverage for the applicant during one of the 
Open Seasons conducted after his marriage to the applicant.  

2.  Although the applicant provides an altered DD Form 1883 that appears to show the FSM requested SBP coverage for the applicant in February 2000, it appears this form was actually originally prepared in March 2000, as indicated by the line through in the date block.  Even if the form was prepared in February 2000, it clearly was not received by a Department of the Army official in St. Louis until 6 March 2000, which was after the close of the 2000 Open Season, which occurred on 29 February 2000.  

3.  The intent of Congress in establishing the SBP program was to establish a cost share system supported by the Government and the Retiree in order to provide retiring service members the opportunity to elect to provide a portion of their retired pay to designated beneficiaries.  While the Board has the ability to provide relief in cases where denial of an SBP annuity is the result of a documented error or injustice, it also has an obligation to protect the integrity of the SBP program and to comply with the intent of Congress, as codified in law.  As a result, although regrettable, absent any evidence that the FSM complied with the enrollment procedures defined by law, it would not be appropriate or serve the interest of all those who have properly enrolled in the SBP, and who have regularly provided premiums that support the system to grant relief in this case.  

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 has failed to submit evidence that would satisfy this requirement or that would support amendment of the Board's original decision in this case.  




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 to amend the decision of the ABCMR set forth in Docket Number AR2004101899, dated 5 August 2004.



      ________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)                                         AR20080011056



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ABCMR Record of Proceedings (cont)                                         AR20080011056


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