IN THE CASE OF:	  

		BOARD DATE:	        09 DECEMBER 2008

		DOCKET NUMBER:  AR20080012755 


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 reconsideration of her request to have the records of her deceased husband, a former service member (FSM), 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 the FSM returned from combat in Vietnam in 1968 and was an excessive drinker of alcohol when he returned.  She goes on to state that during the month of December 1993, when he received his 20-year letter, he was drinking more than usual and he often failed to take care of family matters and this continued until his death.  She continues by stating that he was never able to adjust after returning from Vietnam and he never sought the treatment or used the service of the Department of Veterans Affairs (VA) that was available to him and could have helped him with his many problems, which included Post-Traumatic Stress Disorder (PTSD).  She further states that at the time he was to make an election under the RCSBP, he was not required to inform her of his election and that in his state of mind at the time, he failed to make any election within the 90 days as required.  She also states that her husband always elected to designate "By Law" for his Serviceman's Group Life Insurance (SGLI) so it is reasonable to assume that he would want his widow to receive all other entitlements.  Furthermore, Public Law 106-398, enacted 
30 October 2000 changed the law to allow a spouse's concurrence/non-concurrence, which corrected the injustices that were occurring prior to the change.  Accordingly, she should be granted benefits under the RCSBP due to her 31 years of marriage to the FSM.

3.  The applicant provides no additional documents with her 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070001823, on 23 August 2007.

2.  The FSM was born on 14 June 1947 and was single when he volunteered for induction in Montgomery, Alabama on 31 March 1967.  He completed his basic training at Fort Benning, Georgia and his advanced individual training (AIT) at Fort Polk, Louisiana before being transferred to Vietnam on 5 September 1967 for duty as an infantry indirect fire crewman.  He was advanced to the pay grade of E-4 on 9 May 1968 and departed Vietnam on 2 September 1968 for assignment to Fort Knox, Kentucky, where he remained until he was honorably released from active duty on 28 March 1969, due to the expiration of his term of service (ETS).  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training) and remained there until he was honorably discharged on 30 March 1973.

3.  On 29 April 1974, he enlisted in the USAR and continued to serve through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 19 June 1989.

4.  On 3 December 1993, a Notification of Eligibility for Retired Pay at Age 60 (20-year Letter) was dispatched to the FSM.  In that notification, the FSM was notified that he was entitled to participate in the RCSBP, a plan that enabled him to provide an annuity for his spouse and other eligible beneficiaries.  In bold letters, the Notification informed the FSM that "BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD FORM 1883).  IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60.  IF YOU DO NOT ELECT COVERAGE AND SHOULD DIE BEFORE AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO BENEFITS".  He was also provided detailed information concerning participation in the RCSBP and a blank DD Form 1883.  There is no evidence to show that the FSM ever made an election under the RCSBP.


5.  On 1 August 1995, the FSM submitted a request to be transferred to the Retired Reserve with Special Separation Pay.  Accordingly, he was transferred to the Retired Reserve effective 1 August 1995 due to maximum years of service.  He had 21 years, 11 months, and 28 days of qualifying service for retirement.

6.  A review of the FSM's official records shows that the FSM received maximum ratings on his Noncommissioned Officer Evaluation Reports throughout his service.

7.  The FSM died on 7 March 2000 in Birmingham, Alabama.  He was 52 years of age at the time of his death.

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; or (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.  

9.  Before the law was amended as noted below, a member must have made the election within 90 days of receiving the 20-year letter or wait until he/she applied for retired pay and elected to participate in the standard SBP.  Failure to elect an option resulted in the default election of option A.

10.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  Failure to elect an option now results in the default election of option C.

11.  Public Law 105-261, enacted 29 November 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity 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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be granted an SBP annuity because the FSM's state of mind was affected by his excessive use of alcohol and PTSD since his return from Vietnam, which resulted in his not making an election under the RCSBP, has been noted and found to lack merit. 

2.  Not only has the applicant provided no evidence to support her contentions, the FSM's records also show that he continued to serve satisfactorily in the USAR for 20 years after his return from Vietnam and there is no indication that his decision to not make an election under the RCSBP until he reached age 60 was not a rational and informed decision on his part at the time.  However, it is unfortunate that he died before reaching age 60 before making such a decision.

3.  It is also unfortunate that at the time the FSM was afforded an opportunity to make an election, spousal concurrence was not required when a service member elected less than full coverage; however, the fact that the law changed 5 years later does not nullify the FSM's decision nor does it constitute an error or injustice.

4.  Furthermore, the FSM was afforded an opportunity to enroll in the SBP during the Open Season that began on 1 March 1999 and there is no evidence that he elected to do so, which further reinforces his original decision to defer election until he reached age 60.

5.  Accordingly, since there is no evidence to show that he ever enrolled in the RCSBP or attempted to opt for any coverage under that program, there is no basis to grant the applicant the relief she is seeking.

BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the evidence was sufficient to warrant a recommendation for relief.  The surviving spouse should receive the RCSBP annuity.  The Army has no document or evidence to indicate the FSM elected to decline enrollment in the RCSBP.  It simply relies on the failure of the FSM to reply to the receipt of the 20 year letter.  However, there is no evidence to indicate that the FSM failed to answer the letter; the letter may have been lost.  

2.  The FSM did not by his signature decline to participate in RCSBP.  He may, in fact, have elected RCSBP and the election has been lost.  The Army can show no evidence that he denied his widow coverage.  

3.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he made an election to participate in the RCSBP in December 1993 for spouse only coverage, full base amount and that the election certificate was timely processed by the Defense Finance and Accounting Service.  Any RCSBP premiums due must be paid by the applicant.




      ________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)                                         AR20080012755



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ABCMR Record of Proceedings (cont)                                         AR20080012755



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