IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090003315 


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 husband, a former service member (FSM), be corrected to show that she is entitled to receive the Reserve Component Survivor Benefit Plan/Survivor Benefit Plan (RCSBP/SBP) annuity.

2.  The applicant states, in effect, that the record of the FSM should be corrected to show he enrolled in the RCSBP when he received his Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter).  She claims he was ill when he received the 20 Year Letter and as a result, he failed to submit a RCSBP/SBP election.  She states that beginning in September 1998, the FSM began treatment for memory lapses, severe headaches, and dramatic weight loss, and he was subsequently diagnosed with cancer, which ultimately led to his death in 2005.  She also states that had he been healthy and fully able to consider his options at the time, he would have enrolled in the RCSBP.  She further states that she was unaware that the FSM had acquired 20 years of service and was eligible for military retirement or the RCSBP until 2007. 

3.  The applicant provides the following documents in support of her application:  Self-Authored Letter; Sworn Statement (DA Form 2823); United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) Letters, dated 30 July 2007 and 21 September 2007; Notification of Eligibility for Retired Pay at age 60 (20 Year Letter), dated 16 November 1998; Medical Certificate Translation; DD Form 214 (Certificate of Release or Discharge from Active Duty); Chronological Statement of Retirement Points; Certificate of Death; and Certificate of Marriage.
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 record shows he served in the United States Army Reserve (USAR) from 17 November 1975 through 22 February 1977, and in the Regular Army (RA) on active duty from 23 February 1977 through 23 February 1983.  

3.  On 7 September 1979, the applicant and FSM were married.

4.  On 24 February 1983, the FSM was appointed a Chief Warrant Officer and entered the USAR in that status.  

5.  On 16 November 1998, the Army Reserve Personnel and Administration Center (ARPERCEN) issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), which informed him he had completed the required years of service necessary to qualify to receive retired pay at age 60 upon application.  

6.  The FSM's Chronological Statement of Retirement Points shows he earned 12 inactive duty points during retirement year 17 November 1998 through         16 November 1999.  He was transferred from a troop program unit to the USAR Control Group (Reinforcement) on 8 February 1999 to accept promotion to Chief Warrant Officer Three.

7.  Entries contained in the Integrated Web Service Transactions System, dated as late as mid-2004, show the FSM remained involved in matters affecting his Reserve career (such as updating contact information and updating his Electronic Personnel Security Questionnaire).  He apparently worked as a Department of the Army civilian employee in the 21st Theater Support Command, Germany until he died.

8.  On 29 September 2005, the FSM died at the age of 48.  The death certificate shows he was married to the applicant at the time.
9.  On 30 July 2007, the Chief, Inspector General (IG), Office of the IG, Human Resources Command, St. Louis, Missouri (HRC-St. Louis), responded to the applicant's request for assistance to determine her entitlements and benefits as a result of her deceased husband's military service.  This official informed the applicant that her deceased husband was eligible for Non-Regular Retirement at age 60 on 16 November 1998, and thereby eligible to receive retired pay at age 60.  

10.  The HRC-St. Louis Chief, IG further informed the applicant that as the surviving spouse she was entitled to participate in the RCSBP and provided her with a Verification for Survivor Annuity (DD Form 2656-7) to be completed and submitted to the Personnel Actions & Services Directorate Retired Pay, 
HRC-St. Louis for determination of her eligibility for RCSBP benefits.

11.  On 21 September 2007, the Chief, Transition and Separations Branch, 
HRC-St. Louis, in response to the DD Form 2656-7 submitted, informed the applicant that Title 10, U. S. Code 1448-1455 required a RC Soldier with           20 years or more of qualifying service for retirement to elect RCSBP coverage to provide an annuity if death occurs prior to age 60.  This official stated that although a review of the FSM records showed he earned 20 years of qualifying service on 17 November 1998, there was no evidence that he had elected to participate in the RCSBP/SBP, and as a result, her request for annuity was denied.  He further informed the applicant that the only recourse available was to apply to this Board for relief.

12.  The applicant provides a Medical Certificate, dated 30 August 2008, that shows the FSM was treated at the Diabetologische Schwerpunkpraxis in Germany from 1998.  It further indicates he showed increasingly impaired memory and concentration, and recurrent headaches since September 1998, and that in January 2002 he was diagnosed with a gastrointestinal stoma tumor with liver and brain metastases for which the FSM underwent several surgeries and various chemotherapies.  It further states that as a result of his tumor progressing states of confusion and concentration deficiencies began to show.

13.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

14.  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 RCSBP 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 does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  Before the law was amended as noted below, 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 applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.

15.  Under the provisions of Public Law 95-397, if death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable, except as provided for by law.  Before the law was amended as noted below, 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 applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.

16.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a RC 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 applicant's contention that the records of her deceased spouse should be corrected to show he enrolled in the RCSBP/SBP was carefully considered and found to have merit.  The evidence of record confirms that when the FSM received his 20-year letter in November 1998, he was already under medical treatment for increased impaired memory and concentration and recurrent headaches.  Although there is evidence that the FSM continued to participate with his Reserve unit through February 1999, and to be involved in the management of his Reserve career through mid-2004, it is still unlikely that he would have failed to provide SBP protection for his spouse, given the onset of his medical condition, if he were fully aware of the SBP election requirements and/or of the implications of his failure to elect coverage at the time.  

2.  Further, although there may be valid reasons for believing the FSM was fully capable of understanding and making a decision regarding his SBP election when he received his 20 year letter, this does not eliminate the equity considerations that should be afforded the applicant, a contributing military spouse of more than 20 years, and does not prevent equity relief in this case.   
3.  The intent of Congress to eliminate the possibility of situations such as this and to ensure the participation of spouses in the RCSBP election process was solidified in a change to the original SBP law that was enacted in Public Law 
106-398 on 30 October 2000.  This change to the law required spousal concurrence in a non-election of coverage and provided that the default election of Option C, immediate coverage, would be applicable when an election form is not submitted in a timely manner.  Because this change to the law did not provide retroactive provisions, it is not directly applicable in this case; however, this does not mean it should not be considered in applying equity considerations in this case. 

4.  The facts and independent evidence provided make it as least as reasonable to conclude that the FSM did not fully understand the election requirements at the time he received his 20 Year Letter as it does to conclude it was his intent not to participate in the RCSBP at the time.  Given the onset of illness in 1998, it is unlikely he would not have enrolled in the RCSBP in order to provide protection for his spouse had he clearly understood the implications of this action on his spouse.  This coupled with the fact that the applicant, his spouse of more than 
20 years, was unaware of the RCSBP enrollment requirements, was not advised of the FSM's failure to enroll in the RCSBP at the time, and did not concur with non-enrollment, as is required under the current law, it would serve the interest of equity and compassion to find in favor of the applicant.

5.  In view of the facts of this case, it would be appropriate, in the interest of equity, to comply with the current intent of Congress and to correct the FSM's record to show he elected immediate full Spouse coverage (Option C) in conjunction with receiving his 20 Year Letter.  In addition, the applicant should be provided the SBP annuity due her based on the death of the FSM on 
29 September 2005, minus any SBP premiums due from 16 November 1998 through 29 September 2005.

BOARD VOTE:

___X____  __X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM submitted his RCSBP Election Form within 90 days of receipt of his 20-Year Letter; by showing the FSM elected immediate full Spouse coverage under Option C; and by providing the applicant any SBP annuity payments due from 29 September 2005, the date of the FSM's death, minus any premiums due from 16 November 1998 through 28 September 2005.  




      _______ _   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)                                         AR20090003315



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