IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20090003096 


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 original request to have the records of her brother, a deceased former service member (FSM), corrected to show that he elected Option C (immediate coverage) under the SBP (Survivor Benefit Plan) and designated her son, the FSM’s nephew, as the recipient of the SBP annuity as an “insurable interest.”  Her request for reconsideration was dated 28 August 2007.

2.  The applicant states the original Board failed to address the fact that her brother was divorced at the time he completed the DD Form 1883 (Survivor Benefit Plan Election Certificate) and yet indicated he was married.  She notes a statement her brother signed at the time he completed the election form should have been considered by the Board.

3.  The applicant also notes it is her understanding the “default” option at the time her brother completed the election form in 1998 was “Option A” (deferred election) when the Soldier checked “box 8(e)” (none) and that now “Option C” (immediate coverage) is the default option.

4.  The applicant reiterates her brother wanted to provide for his nephew because his nephew was disabled and incapable of supporting himself.  She states her son would have benefited from the continued life of the Soldier and the FSM’s intention was evidenced by the fact he designated his nephew as the beneficiary of record for his active duty military pay.  She states anyone who knew her brother would “surely attest to the fact that he would not have wanted and/or intended for his nephew and/or his sister not to receive all of the benefits that were due him by virtue of his military affiliation and/or any other affiliation.”

5.  The applicant provides a copy of a DD Form 1883, signed by her brother on 
18 November 1998, that, unlike the form in the FSM’s Official Military Personnel File (OMPF), does not reflect an option election in item 9c.  She also submits a copy of the reverse side of the DD Form 1883 and a copy of a statement signed by the FSM indicating he did not know where his wife was and had not had any contact with her in over 2 years.

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 AR20050017988, on 24 August 2006.  The applicant was notified of the Board’s decision in a letter dated 1 September 2006.

2.  The second election form and the statement regarding the whereabouts of the FSM’s spouse, which were provided by the applicant in her request for reconsideration, constitute new evidence not previously seen by Board which now warrant review.

3.  The FSM’s OMPF contains a DD Form 1883 signed by the FSM and a witness on 18 November 1998.  The election form was completed less than 60 days after the FSM was notified he had completed sufficient qualifying service to receive Reserve retired pay upon reaching age 60.  On the election form, the FSM indicated he was married and identified his spouse in Section III (Family Information) on the form.  The FSM also marked an “X” in the box indicating that he wanted no type of coverage, and then marked an “X” beside Option A (defer) in item 9c.  He could have marked an “X” beside Option B (age 60), or Option C (immediate coverage).  Item 9c directed the Soldier to “see instructions on reverse” when selecting the desired option.

4.  The reverse of the election form, which the applicant provided with her request for reconsideration and which was previously considered by the Board during its initial deliberation, was signed by the FSM on 18 November 1998 and did not contain the signature of a spouse.  The reverse of the election form provided information concerning the various election options as well as the monthly cost and annuities associated with the various election possibilities under the SBP.


5.  The applicant provided a copy of a statement signed by the FSM on 
18 November 1998, the same day he executed his DD Form 1883, indicating he had not been in contact with his wife for over 2 years and did not know, or care, where she was.

6.  The copy of the DD Form 1883 provided by the applicant in her request for reconsideration is identical to the form in the FSM’s OMPF, with the exception that none of the options under item 9c were marked with an “X.”

7.  Documents provided by the applicant and contained in the FSM’s OMPF indicate the FSM designated his sister and nephew as beneficiaries for his Servicemembers’ Group Life Insurance (SGLI).  He made that designation on 
4 January 2003.  On 15 September 2002 the FSM indicated on his Record of Emergency Data that he was divorced and that his sister should receive his Death Gratuity in the event of his death and his nephew should receive any unpaid pay and allowances.

8.  On 5 June 2005, the same day the FSM died, a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) was issued discharging him from the New York Army National Guard under the provisions of National Guard Regulation 600-200, paragraph 8-27(k).

9.  Documents provided by the applicant in her original application indicate the FSM was divorced in 1983.

10.  Public Law 95-397, the Reserve Component SBP (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 have waited until he/she applied for retired pay and elected to participate in the standard SBP.

11.  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.  In other words, failure to elect an option now results in the default election of option C.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in the FSM's file, and provided by the applicant indicates the FSM was divorced at the time he completed his SBP election form in 1997.  While it is unclear why he would have checked the block indicating he was married and provided his spouse’s information on the form, the fact remains that on the form in his OMPF and the copy provided by the applicant he indicated he did not wish to provide SBP coverage to anyone.  He indicated that decision by marking an “X” next to the “none” block on the form.  

2.  Had the FSM wished to provide an SBP annuity to his sister or his nephew he could have indicated as such on the election form by selecting coverage for an insurable interest.  The selection of “Option A” on the FSM’s election form merely provided him another opportunity to make another election upon application for retired pay when he reached age 60, but in no way can be construed as evidence that he intended to provide an immediate annuity under the SBP to his sister or nephew should he die prior to reaching age 60.

3.  The applicant is partially correct when she notes that currently the “default” option is Option C (immediate coverage).  However, that option would be the default only when the Soldier has a spouse and either fails to make an election within 90 days of receiving notification that he meets eligibility requirements for retired pay at age or 60 or did not secure his spouse’s concurrence.  In the FSM’s case he was not married, in spite of having so indicated on his election form, and as such the default option would not have been invoked.  In order to provide immediate coverage to the applicant or his nephew the FSM would have had to so indicate on his election form.  There was no automatic default for an insurable interest election.

4.  The fact that the FSM provided that his unpaid pay and allowance and his SGLI would go to his sister and/or nephew is not an automatic indication that he would have elected to ultimately have his retired pay reduced in order to fund an SBP annuity to either of those individuals upon his death.  

5.  Unfortunately, the evidence does not support a conclusion that the FSM intended to provide an immediate annuity to an insurable interest under the SBP when he made his SBP election in November 1998.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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 AR20050017988, on 24 August 2006.



      ___________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)                                         AR20090003096



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ABCMR Record of Proceedings (cont)                                         AR20090003096



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