BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008184 


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:

Through counsel, the applicant requests, in effect, reconsideration of her earlier request to receive the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's previous request to receive the SBP annuity due as the spouse of the FSM.

2.  Counsel states, in effect, that the previous denial of the Board is contrary to and not supported by any credible evidence that the applicant or the FSM ever actually received the survivor benefit packet and/or that they failed to timely execute and return it within 90 days of receipt.  He states the record fails to contain any tangible evidence or eyewitness testimony confirming the SBP packet was ever in the possession of the applicant or the FSM.

3.  Counsel also states that the previous Board decision is not supported by evidence verifying that the applicant was ever informed or advised of her right to SBP as required by Public Law 95-397 and Public Law 99-145.  Counsel also indicates that the record is equally clear that pursuant to Public Law, the applicant was never informed, told, or advised that she had a vested interest in her husband's military retirement and that the FSM had failed to make an election or that he had elected less than full coverage, and that this fact is sufficient to set aside the Board's original decision and to enter a new decision granting and approving the applicant's request for SBP annuity benefits.
4.  Counsel provides a brief containing new argument in support of the reconsideration request.

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 AR20080011761 on 16 October 2008.

2.  During its original review of the applicant's case, the Board concluded that an SBP packet had been mailed to the FSM.  However, the FSM failed to complete and return the DD Form 1883 (Survivor Benefit Plan Election Certificate) electing to enroll in the SBP plan within 90 calendar days from the date of receipt as required by law.  As a result, there was insufficient evidence to support granting the applicant's request.

3.  The applicant and counsel provide no new documentary evidence in support of the reconsideration request, but do provide a counsel brief outlining new argument in support the request.  In this brief, counsel argues that the original Board discussion/conclusions are not supported by evidence that the applicant was ever informed or advised of her right to SBP benefits pursuant to Public Law 95-397 and Public Law 99-145.  In addition, he argues the applicant was never advised that her husband failed to make an SBP election or elected less than full coverage.

4.  The FSM's official military personnel file shows he served on active duty in the Regular Army for 1 year, 9 months, and 25 days from 17 February 1969 through 11 December 1970, at which time he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) to complete his military service obligation.  On 5 February 1977, the FSM reenlisted in the USAR.

5.  On 28 May 1992, the U.S. Army Reserve Personnel Center (ARPERCEN) issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) to the FSM.  This notification informed the FSM that he had completed the required years of service necessary to qualify to receive retired pay at age 60 upon application.  Paragraph 3 of this notification informed the FSM that he had to complete his initial DD Form 1883 within 90 calendar days from the date of receipt of the 20-year letter and if he failed to make his election within 90 days, he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60.

6.  The 20-year letter further informed the FSM that if he did not elect coverage and died prior to reaching age 60, there would be no benefits for his spouse and that more detailed information concerning participating in the Reserve Component (RC) SBP and a blank DD Form 1883 were enclosed.

7.  The FSM's DA Form 2A (Personnel Qualification Record) shows that in October 1994 the FSM made several pen and ink changes to the document.  However, there is no question mark or pen and ink change by the entry in item 15 which indicates that his 20-year letter had been issued on 28 May 1992.

8.  There is no evidence of record or independent evidence which indicates the FSM ever completed a DD Form 1883 or a DD Form 2656 (SBP Election Change Certificate) electing to enroll in the RCSBP and/or that he elected "spouse only" coverage.

9.  On 16 December 2007, the FSM died at the age of 59.  The death certificate shows he was married to the applicant at the time.

10.  On 18 April 2008, a U.S. Army Human Resources Command (formerly ARPERCEN) letter informed the applicant that upon review of the FSM's files it had been determined that an SBP packet which included a DD Form 1883 had been mailed to the FSM.  However, the FSM failed to return the DD Form 1883 electing enrollment in the SBP within the 90 days as prescribed by law; therefore, no one is entitled to an annuity.

11.  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 elect 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.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the 20-year letter or else wait until he or she applied for retired pay at age 60 and elect to participate in the standard SBP.

12.  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 default election when an election form was not submitted or is not on file is option C.  This law is applicable to cases where the 20-year letter was issued after 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to an RCSBP annuity based on the death of her husband was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, Soldiers who complete 20 or more qualifying years are issued a 20-year letter that informs them of their retirement eligibility and offers them the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  If the election was not submitted within the 90-day period, the member deferred the opportunity to enroll in the program until he or she applied for retired pay at age 60.  If the member died before reaching age 60, the spouse was authorized no SBP benefits.

3.  The evidence of record, to include the FSM’s DA Form 2A, confirms the FSM was notified by memorandum (20-year letter), which included a DD Form 1883, that he had become eligible for a Reserve retirement upon reaching age 60 and was notified of the requirement for him to submit an RCSBP election within 90 days, and that if he failed to submit his election form he would not be eligible to enroll in the SBP until he applied for retired pay at age 60 and his spouse would receive no SBP annuity if he died before reaching age 60.  Therefore, absent evidence to the contrary, it is presumed the FSM received the notification, was aware of the RCSBP enrollment requirement, and simply elected not to enroll in the RCSBP.

4.  Further, although there is no evidence that the applicant was notified of the FSM's failure to enroll in the RCSBP, the law in effect at the time had no requirement for her to be notified that the FSM did not enroll in the RCSBP.  The current law requiring spousal notification was not implemented until 1 January 2001.  As a result, the applicant not being notified of the FSM's failure to enroll was not a material error at the time because spousal concurrence was not required, and the lack of notification to the applicant would not have affected the FSM's enrollment (non-enrollment) choice at the time.

5.  The FSM's failure to respond within 90 days of receiving his 20-year letter and RCSBP notification did not constitute an election not to participate in the RCSBP and neither spousal notification nor concurrence was required for a Reserve member to delay an RCSBP election until age 60 under the existing law at the time.  As a result, given there is no evidence that the FSM intended to enroll in the RCSBP prior to reaching age 60, the applicant was not eligible to receive an SBP annuity based on the death of the FSM prior to reaching age 60.


6.  Furthermore, although he made several corrections to his DA Form 2A when he updated the form in October 1994, the FSM failed to indicate any error related to the date he was issued the 20-year letter entered in item 15 of the record which indicated he had been issued the 20-year letter on 28 May 1992.  Given the importance of the 20-year letter, it is reasonable to presume that the FSM would have questioned this entry if he had never actually received it.  The applicant has failed to meet her burden of proof and as a result is not entitled to the requested relief.

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 AR20080011761, dated 16 October 2008.



      ___________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)                                         AR20090008184



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ABCMR Record of Proceedings (cont)                                         AR20090008184



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