IN THE CASE OF:	  

		BOARD DATE:	    12 January 2010

		DOCKET NUMBER:  AR20090007591 


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 that she be shown to be entitled to receive the retirement benefits for her deceased husband, a former service member (FSM); that she be shown to be entitled to benefits under the Survivor Benefit Plan (SBP); and be entitled to receive payment under the Serviceman's Government Life Insurance (SGLI) or Veterans Group Life Insurance (VGLI).

2.  The applicant states the FSM had alcohol and drug abuse problems at the time he retired and they only got worse after his retirement.  The FSM lied to her about benefits to which she might be entitled.  He also lied to the Department of Veterans Affairs (VA), telling them at one point that they were divorced.  The government did not notify her of her rights as a spouse of a retired service member and if she had been notified she would have kept the FSM's life insurance current.  In the last few weeks of his life, the FSM told her he wanted her get his retirement and attempted to make the necessary changes through the VA but was prevented from doing so by his rapidly deteriorating health.

3.  The applicant provides copies of her marriage certificate, the FSM's death certificate, photocopies of her and the FSM's military identification cards, four notarized letters, and 19 pages of VA medical documents.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 8 December 1972, completed training, and was awarded military occupational specialty 11H (Infantry Indirect Fire Crewmember).  His date of birth is shown as 30 April 1953.
2.  The FSM was honorably released from active duty on 29 November 1974 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).

3.  A 13 February 1995 Department of the Army Reserve Personnel 
Form 249-2-E (Chronological Statement of Retirement Points) shows the FSM had completed 20 qualifying years toward eligibility to receive retired pay at age 60 as of 29 November 1994.

4.  The FSM remained in an active status in the USAR until 1 June 1995 when he transferred to the USAR Control Group (Reinforcement).

5.  On 16 June 1995, the FSM received a Notification of Eligibility for Retired Pay at Age 60 (commonly called a 20-year letter).  Included in the letter was the notice that the FSM had the option to participate in the Reserve Component Survivor Benefit Plan (RCSBP).  It advised him that he had only 90 days to submit his election or he would not be entitled to RCSBP coverage until he applied for retired pay at age 60.  He was warned that if he did not elect coverage and died prior to age 60, his survivors would not be entitled to benefits.

6.  The 20-year letter also advised the FSM that he might be eligible for SGLI (Retired Reserve coverage).  It provided the FSM with the proper instructions and procedures for applying for coverage.

7.  There is no record of the FSM submitting the required election form for either participation in RCSBP or applying for SGLI/VGLI coverage in either his official military personnel record or associated with his retired pay records at the Defense Finance and Accounting Service.

8.  The applicant provides a personal statement describing the FSM's alcohol, drug, and health problems over the last 18 years of his life.  In 2003, he had been awarded VA benefits but they were later revoked due to fraud on the part of the FSM.  She indicates that the FSM had lied to the VA about both his marital status and her employment status.  In November 2008, the FSM was hospitalized and realized that he was dying.  On Friday, 7 November 2008, he left the hospital to go to the VA to establish her entitlement to military benefits but arrived too late in the day to accomplish anything.  Before he could return on Monday his health took a severe turn for the worse and he was again hospitalized.  At this point she was told that the FSM had only 1 or 2 weeks to live.  The FSM passed away on 24 November 2008.  If the FSM had let her know about SBP in 1995, she would have paid for the coverage.  She believes that she should have been notified by the government of the potential for SBP coverage and as the widow of a retired service member she is entitled to the benefits he earned.

9.  T____ W____ affirms that she drove the FSM from the hospital to the VA in order for him to make sure his wife received his military benefits.  They arrived after the VA office had closed for the weekend.  The FSM's health worsened causing him to again be hospitalized and he was unable to complete any action at the VA.

10.  F____ H_____ states that he was the FSM's hospital attendant while he was hospitalized from 3 through 7 November 2008.  The FSM told him he knew he was dying and wanted to make things right for his wife and children.

11.  First Lieutenant H____ G____, Jr. states that his father was a drug addict with significant medical problems.  He and his father spoke in the days preceding his death about the FSM going to the VA to handle his military affairs so that his mother would not have any problems.

12.  A____ G____, the FSM's brother, states that the FSM was a long-time drug and alcohol addict.  In November 2008, he spoke with his brother in the hospital about setting his affairs right.  The FSM told him that he wanted to go the VA office to put his wife down for his military benefits.

13.  The VA medical progress notes show the FSM was diagnosed with human immunodeficiency virus disease, toxoplasmosis, brain lesions, cirrhosis of the liver, diabetes, substance abuse (principally alcohol and cocaine),and hypertriglyceridema.  The notes show the FSM claimed to have separated from his wife in 1995.  The FSM also reported he retired from the military in 1999.  In a June 2008 note, the FSM's case manager noted that he had been to the FSM's house and that the FSM did not have any furniture except two straight-backed chairs and was sleeping on the floor.  At that time the VA did not have a current next of kin on record.  The FSM had asked that the case worker not share information with his daughter because he was afraid of her.  The case worker also stated that there did not appear to be any evidence of any family support.

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 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.  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 elect to participate in the standard SBP.
15.  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.  Paragraph 2-8 states that the ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The application may be returned without action if the ABCMR does not have jurisdiction to grant the requested relief.  Paragraph 2-9 states 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.

16.  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 only applicable to cases where 20-year letters were issued after 1 January 2001.

17.  SGLI and VGLI are provided for under Title 38, U.S. Code.  This title provides, in pertinent part, that SGLI coverage terminates 120 days after the separation of a Reservist or Guardsman unless the person is totally disabled.  Conversion from the SGLI to the VGLI is provided for in limited circumstances and is controlled by the VA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the government should have notified her that the FSM declined to elect coverage under the RCSBP and provided her with the requirements for continuation of SGLI/VGLI coverage at the time of his retirement.

2.  There are no provisions in Army regulations to provide a spouse notification of entitlement to or requirements for converting from SGLI to VGLI.  Further, since this program is controlled by the VA, the Board does not have the jurisdiction to grant the requested relief.

3.  The FSM was eligible for retired pay at age 60, but since he was not yet 60, he was not in receipt of retired pay at the time of his death.  Therefore, there is no retirement pay owed to the applicant.

4.  The FSM did not respond within 90 days of receipt of his notification of entitlement to retired pay at age 60.  This resulted in an automatic deferral of his election until he reached age 60.  At this time, this election did not require opportunity to elect SBP coverage until he reached age 60.  The FSM could have made a change to his election only during an open season or at the time he turned 60.
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 has failed to submit evidence that would satisfy this requirement.

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 for correction of the records of the individual concerned.



      _______ _ 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)                                         AR20090007591



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ABCMR Record of Proceedings (cont)                                         AR20090007591



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