IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080012575 


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 due to his health, the FSM elected the SBP and filed a DD Form 1883 (Survivor Benefit Plan Election Certificate).

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

	a.  Retirement Point Accounting System, dated 30 May 2008.

	b.  Department of Veterans Affairs (DVA) Dependency and Indemnity Compensation (DIC) Decision, dated 7 April 2008.

	c.  U.S. Army Reserve Personnel Center, St. Louis, Missouri, Notification of Eligibility for Retired Pay at Age 60 letter, dated 16 November 1991.

	d.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 July 1991.

	e.  U.S. Army Reserve Personnel Center, St. Louis, Missouri, Chronological Statement of Retired Points, dated 14 July 1995.

	f.  Honorable Discharge Certificate, dated 30 June 1995.
	g.  Marriage Certificate, dated 14 February 2004.

	h.  Application for Lump-Sum Death Payment under the Social Security Administration, dated 8 July 2004.

	i.  Certificate of death, dated 30 May 2004.

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 27 November 1953 and enlisted in the U.S. Army Reserve (USAR) on 1 May 1971.  He was subsequently ordered to active duty for training (ADT) on 20 July 1971, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 94B (Cook).  He was honorably released from ADT to the control of his USAR unit on 20 November 1971.  His records also show he executed a series of extensions and/or reenlistments in the USA and attained the rank/grade of sergeant (SGT)/E-5.

3.  On 16 November 1991, 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 pay 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.

4.  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 1991.  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.

5.  There is no indication in the FSM's records that he designated a spouse as the SBP beneficiary within one year of marriage. 

6.  On 22 September 1992, Headquarters, 125th U.S. Army Reserve Command, Nashville, Tennessee, published Orders 97-22 reassigning the FSM to the U.S. Army Reserve Control Group (Reinforcement) as an unsatisfactory participant.

7.  In her application for lump-sum death payment, dated 8 July 2004, the applicant stated that she and the FSM were married in 1993 by common law and that they were married by a justice of the peace on 14 February 2004.

8.  On 30 June 1995, the U.S. Army Reserve Personnel Center, St. Louis, Missouri, published Orders D-06-553956, honorably discharging the FSM from the U.S. Army Reserve.

9.  The applicant's marriage certificate shows she and the FSM were married on 14 February 2004.

10.  On 30 May 2004, the FSM died at the age of 50.

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.  The applicant and the FSM were "common law" married in 1993.  This was not legally possible since according to the applicant's printout, she was not divorced from her previous spouse until 1994.  Additionally, even if the FSM elected spouse coverage in 2004 after their marriage, he did not survive long enough for benefits to vest. 

5.  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 for 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)                                         AR20080012575



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ABCMR Record of Proceedings (cont)                                         AR20080012575



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