IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090010019 


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, the widow of a deceased former service member (FSM), requests that his record be corrected to show he elected to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states it is unfair that the survivor of a Soldier who gave over  26 years of service to his country is barred from participation in the SBP.

3.  The applicant provides copies of the FSM's death certificate, a personal statement, a letter from the FSM's sister, a statement from the FSM's physician, a partially-completed DD Form 2656 (Data for Payment of Retired Personnel), and a DD Form 108 (Application for Retired Pay Benefits).

CONSIDERATION OF EVIDENCE:

1.  The FSM, who was born on 22 February 1949, served on active duty in the U.S. Marine Corps, from 6 September 1967 through 31 August 1971; in the U.S. Marine Corps Reserve, from August 1971 through July 1973; and in the U.S. Army Reserve (USAR), from 20 December 1983 through 15 November 2005.

2.  On 27 July 2000, the U.S. Army Reserve Command sent the applicant a Notification of Eligibility for Retired Pay at Age 60 (commonly called a 20-year letter).

3.  Included in the letter was the notification of entitlement to participate in the Reserve Component Survivor Benefit Plan (RCSBP).  The FSM was required to submit an election within 90 days to be covered under the RCSBP.  If he did not return the DD Form 1883 (SBP Election) form, he would not be entitled to SBP coverage until he applied for retired pay at age 60.  He was warned that if he died before age 60 his survivors would not be entitled to benefits.

4.  The record contains no indication the FSM completed or submitted the RCSBP election form.

5.  An SGLV-8286 (Servicemembers' Group Life Insurance (SGLI) Election and Certificate), dated 6 January 1999, designated the FSM's three daughters as equal beneficiaries of his life insurance.  Although the home address is the same as the FSM's, two are shown as married and the third over age 22.

6.  The partially-completed DD Form 2656 provided by the applicant shows the FSM married the applicant on 25 August 2001.  The SBP election section shows an election for spouse only coverage at the full gross pay level.  The section for spousal concurrence is blank as are all entries requiring a signature.

7.  The DA Form 108 provided by the applicant shows the FSM started his application for receipt of retired pay with an effective date of entitlement of        23 February 2009.  This form is not signed or dated.

8.  The FSM died of cancer on 8 September 2008, approximately 7 months before his 60th birthday.

9.  In her personal statement, the applicant describes the FSM's actions commencing in October of 2004 through the end of his life.  The FSM was to be deployed to Iraq in October 2004 but was found medically unfit and as a result retired on 15 November 2005 with over 26 years of qualifying service.  He became depressed and withdrawn after being told he could not deploy with his unit.  She believes the FSM completed the SBP form in pencil but she could not find a fully completed copy.  The FSM told her he had filed the forms necessary for her to receive his annuity in the event of his death.  In June of 2007 the FSM was diagnosed with a stage III gastroesophageal carcinoma.  He underwent major surgical intervention but developed complications and passed away on 8 September 2008.  After his death she was not able to locate the SBP forms but found a partially completed DD Form 2656 giving her 100 percent of his annuity.  
The applicant states it is unfair that a Soldier who gave over 26 years to his country and because he became sick and depressed cannot be covered under the SBP.

10.  The FSM's sister supports the applicant's statements and indicates the FSM repeatedly told her he was working on the necessary forms to ensure his wife would receive his annuity and later that he had filed the necessary forms.
11.  The FSM's physician affirms that he started treating the FSM for metastatic cancer in May of 2007.  The FSM weakened and became depressed, passing away on 8 September 2008.  The physician states that due to the FSM's physical and mental state he was unable to complete the necessary forms for survivor's benefits.

12.  Other than on the documents provided by the applicant, the record contains no direct information as to the applicant's marital status or information as to when or if the FSM notified the Army or the Defense Finance and Accounting Service that he had married the applicant.

13.  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; (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 applies for retired pay and elect to participate in the standard SBP.

14.  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.  A Soldier could also have made an election during an open season period that was in effect from 1 October 2005 through 30 September 2006. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states it is unfair for the survivor of a Soldier who gave over    26 years of service to his country to be barred from participation in the SBP.

2.  The evidence of record shows the FSM did not make an RCSBP election at the time he received his 20-year letter.  Based on his 1999 SGLI beneficiary election, it appears the FSM was not married and did not have any dependent children at the time he received his 20-year letter. 

3.  The FSM appears to have married the applicant in 2001, a little over a year after receiving his 20-year letter.  He had 1 year from the date of this marriage to elect to participate in RCSBP but there is no indication he elected to enroll at that time.  This was several years before the applicant states the FSM became depressed over not being allowed to deploy.

4.  The FSM had the opportunity to enroll in the SBP during the 1 October 2005 through 30 September 2006 Open Season.  There is no evidence he attempted to do so. 

5.  The FSM would have also have been able to make an election when he turned age 60.  The documents provided by the applicant appear to have been started in preparation of the FSM attaining age 60 and receiving retired pay.  This would have been a legitimate point for him to make the SBP election, but unfortunately because the FSM died before being in receipt of retired pay, the SBP election would have been of no legal effect.  

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)                                         AR20090010019



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ABCMR Record of Proceedings (cont)                                         AR20090010019


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