IN THE CASE OF:	  

		BOARD DATE:	        11 JUNE 2009

		DOCKET NUMBER:  AR20090002452 


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, that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and child beneficiary coverage based on full retired pay with an immediate annuity within the time limit prescribed by law.

2.  The applicant states, in effect, that she believes the Human Resources Command, St. Louis (HRC, STL) is responsible for a copy of the Reserve Soldier's personnel paperwork, not the widow of the Soldier.  She states that the FSM completed all the appropriate information on the first two pages of the DD Form 2656-5 (RCSBP Election Certificate) leading her to believe that he also signed the document.  She states the missing page of the DD Form 2656-5 was discovered after the FSM's death.

3.  The applicant provides a copy of the letter from the HRC, STL Transition and Separations Branch denying her application for survivor benefits, a certified true copy of DD Form 2656-5 (minus page three), a copy of the DD Form 2656-7 (Verification for Survivor Annuity), a copy of a marriage certificate, and a copy of the FSM's death certificate in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's date of birth is shown as 26 August 1948.  His records show he enlisted in the Arkansas Army National Guard on 6 August 1968.  He enlisted in the U.S. Army Reserve on 28 June 1984.  He was promoted to pay grade E-9 and appointed as a command sergeant major.

2.  On 8 March 1995, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  Paragraph 4 of the letter states (in bold print), in pertinent part, that by law the Soldier has 90 calendar days from the date he or she receives the letter to submit a Survivor Benefit Plan Election Certificate (DD Form 1883).  It further states, that if the Soldier does not submit an election within 90 calendar days, he or she will not be entitled to survivor benefit coverage until the Soldier applies for retired pay at age 60.  It further states, "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."  Prior to 1 January 2001, failure to make any or a proper RCSBP election "defaulted" to no coverage, by law.

3.  During the processing of this case, a member of the Board's staff contacted the HRC, STL Transition and Separations Branch.  A Transition and Separations Branch official informed the Board's staff that there is no evidence in any of the FSM's records indicating he completed an RCSBP election at the time of receiving his twenty year letter or that he provided a completed (signed and dated) RCSBP election certificate (DD Form 2656-5) within the prescribed one-year period following the date of marriage to the applicant.

4.  The applicant's records contain a DD Form 93 (Record of Emergency Data) which shows he had dependent children at the time he received his twenty-year letter and made no election on their behalf.  

5.  The applicant provided a marriage certificate which shows she married the FSM on 18 April 2003.

6.  The applicant provided the first two pages of a DD Form 2656-5, indicating the FSM's intentions would have been to elect to participate in the RCSBP with spouse and child coverage based on full retired pay and immediate annuity coverage at his death.  It is noted that the document has incorrectly entered data such as the FSM's birth date and the applicant's social security number.  A date stamp on page 1 of the DD Form 2656-5 shows the date 5 November 2003.  

7.  On 21 October 2008, the HRC, STL Transition and Separations Branch informed the applicant that the FSM's SBP file did not contain a full DD Form 2565-5 (page 3 was missing).

8.  The applicant provided a death certificate showing the FSM's marital status as married and that he died on 11 June 2007 at the age of 58.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law. 

10.  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) defer or decline to make an SBP election until beginning to draw retired pay age 60; (B) provide an annuity beginning on 
retiree's 60th birthday (if death occurs before 60), or upon retiree's death (if age 60 or older upon death); (C) provide an annuity beginning on the day after retiree's death, regardless of retiree's age at death.  Once a member elects either Option B or C in any category of coverage, that election is irrevocable.

11.  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 one year after the date on which that person marries or acquires that dependent child.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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.  Evidence indicates the FSM did not make any or a proper RCSBP election in 1995 when he was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  Therefore, based on the law in effect at that time, his SBP coverage would have "defaulted" to deferred coverage.  The FSM had potentially eligible children at the time of his failure to make an election when he received his twenty-year letter.  Therefore, he was prohibited from electing child coverage in the future.  As such, his stepson listed on the DD Form 2656-5 provided by the applicant is not entitled to SBP coverage.

2.  By law, the FSM had one year from the date of his marriage to the applicant in April 2003 to add her as an RCSBP beneficiary.  His records contained only the first two pages of a DD Form 2656-5 with spouse and child beneficiary coverage selected, based on full retired pay and immediate annuity.  The partial SBP election document (2 pages of 3) indicates the FSM was married to the applicant at the time the document would have been completed based on a date stamp on page 1 of the DD Form 2656-5 showing the date 5 November 2003.  The date stamp also shows that the DD Form 2656-5 was received within a year of the marriage between the applicant and the FSM.

3.  While the DD Form 2656-5 is missing page 3; contains an incorrectly entered birth date of the FSM and applicant's social security number; and an invalid election because it includes the ineligible stepson; the HRC, STL Transition and Separations Branch has not provided any evidence that these discrepancies were ever addressed with the FSM or to indicate the DD Form 2656-5 had been returned to the FSM as an invalid election.

4.  In the absence of evidence to show that the HRC-STL took action to inform the applicant that his election was invalid or untimely, and in view of the date stamp showing that the election was received in a timely manner, it must be presumed that the FSM believed that he had submitted an SBP election which had been accepted as valid.  The applicant should not be penalized for the HRC-STL's oversight.  Therefore, it would be in the interest of justice for the FSM's records to be corrected to show that the HRC, STL Transition and Separations Branch was in receipt of a valid SBP election for spouse only coverage based on full retired pay with immediate annuity within the first year anniversary of the FSM's marriage to the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:


     a.  showing the FSM elected to enroll in the RCSBP for spouse coverage, option C, full base amount within the first year anniversary his marriage to the applicant; and

     b.  paying to the applicant the annuity retroactive to the date of the FSM's death.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing the FSM enrolled in the RCSBP for child coverage.


      _______ _   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)                                         AR20090002452



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ABCMR Record of Proceedings (cont)                                         AR20090002452



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