IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090010696 


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, correction of the records of her deceased spouse, a former service member (FSM), to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) when he received his Notification of Eligibility for Retired Pay at Age 60 (also known as the 20-year letter).

2.  The applicant states that upon the death of her husband, government officials informed her that they could not locate a copy of the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate) in his official records.  She states that her husband always told her that she would be taken care of, but now she believes the military must have misplaced his DD Form 1883.  She faults the Army National Guard (ARNG) for its poor record keeping and lack of leadership since they did not ensure that the FSM was properly counseled and that he completed the RCSBP election form.  She believes that if her husband had been properly counseled he would have completed the form and it would be filed in his records.  She also states that it is an injustice that beneficiaries after 1 January 2001 automatically receive benefits without a sponsor completing the beneficiary election form.  She states that she made sacrifices and supported her husband during his 22 years of military service and she believes it is an injustice that after her many years of sacrifice, she will not receive survivor benefits.

3.  The applicant provides the following documents in support of her application:

	a.  a copy of their certificate of marriage;
	
   b.  a copy of Orders 103-043, issued by the Department of Military and Veterans Affairs for the Commonwealth of Pennsylvania, dated 4 June 1997, which discharged the FSM from the ARNG and transferred him to the Retired Reserve;

	c.  a copy of the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service);

	d.  a copy of the FSM's 20-Year Letter, dated 20 May 1996;

	e.  a copy of the FSM's NGB Form 23A (ARNG Current Annual Statement), dated 20 May 1996;

	f.  a copy of the applicant's Congressional representative's inquiry to the Chief of Army Legislative Liaison, Washington, DC, dated 16 July 2009; 

	g.  a copy of a letter from Headquarters, U.S. Marine Corps (USMC), dated 4 December 2007, requesting the Veterans Administration display posters in their facilities announcing a nationwide search for service members and their families who lived at Camp Lejeune, NC between 1957 and 1987; and 

	h.  a copy of a letter from Headquarters, USMC, dated 1 August 2008 that seeks individuals who lived and worked on Camp Lejeune from 1957 to 1987 for development of a notification registry for suspected contamination in the camp's water supply system. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the FSM's record, to show he enrolled in the RCSBP.

2.  Counsel states, in effect, that after careful review of the evidentiary record and the applicant's contentions that the military misplaced her deceased husband's DD Form 1883, there are probative facts for equitable review.  He further supports the applicant's request to correct her deceased husband's record.  

3.  Counsel does not provide any evidence in support of the applicant's application. 

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 11 June 1957.

2.  The FSM entered the USMC on 23 June 1975.  After his four-year period of service, he was honorably released from active duty and he was transferred to the U.S. Marine Corps Reserve (USMCR) on 22 June 1979.

3.  The FSM enlisted in the Pennsylvania ARNG (PAARNG) on 20 May 1981 in the rank/grade of private first class (PFC)/E-3.  Records show his military occupational specialty (MOS) was 13F (Fire Support Specialist) and the highest rank/grade he attained in the PAARNG was sergeant (SGT)/E-5.  He served continuously in the PAARNG until his retirement.

4.  On 20 October 1984, the FSM and the applicant were married.

5.  On 20 May 1996, the FSM received his 20-Year Letter from the PAARNG stating he was eligible for retired pay at age 60 for he had completed over 20 years of qualifying service for nonregular retirement.  In the instruction sheet that accompanied the FSM's notification letter, he was told to elect one of the options available under the RCSBP by completing a DD Form 1883 (Survivor Election Plan election Certificate).  He was advised that he had 90 days to complete his election form and return it to The Adjutant General of Pennsylvania (TAGPA), Office of Military Personnel.  The letter stated that this office would forward the original election and the 20-Year notification letter to the Army Reserve Personnel Center, and that the Standard Installation and Division Personnel Reporting System (SIDPERS) Interface Branch and the Personnel Service Branch would receive their copies of the FSM election form also.

6.  A review of the applicant's available military personnel records does not show that the FSM submitted an election form within 90 days of receipt of his 20-Year Letter.

7.  On 1 July 1997, the FSM was transferred to the Retired Reserve in the rank/grade of SGT/E-5.  

8.  On 30 April 2009, the FSM died at the age of 51.  The underlying cause of his death was metastatic renal cell carcinoma.

9.  In the processing of these Proceedings, a staff of the Board contacted the PAARNG, Retirement Services Office.  The staff member was informed that no record was available to show that the FSM submitted a DD Form 1883 within 90 days of receipt of his 20-Year Letter.

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  The laws further provided that retiring members and spouses were to be informed of SBP options and effects and that premium deductions continued after loss of spouse.

11.  Public Law 95-397, the RCSBP, enacted on 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.

12.  Public Law 105-261, enacted 17 October 1998, established an SBP Open Season to be conducted 1 March 1999 through 29 February 2000 that allowed members who declined SBP coverage an opportunity to elect to participate in the SBP.
 
13.  Public Law 106-398, enacted on 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 were issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

14.  Public Law 108-375, enacted on 28 October 2004, established an SBP Open Season from 1 October 2005 to 30 September 2006 that allowed members who declined than maximum SBP coverage an opportunity to elect to participate in the SBP.

15.  Army Regulation 135-180, in effect at the time, implemented statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve Components Soldiers.  It explains that retired pay is pay granted Soldiers and former Reserve Components Soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-Year Letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her deceased husband would have made a timely election had his unit leadership properly counseled him when he received his retirement notification letter for he always said he would take care of her.  She also contends that she supported her deceased husband throughout his military career and that she and their family made sacrifices to support him.  Further, if her deceased husband would have retired after 1 January 2001 and had he not completed and submitted the survivor election form, she would automatically receive survivor benefits.

2.  The FSM received his 20-Year Letter on 20 May 1996, which included instructions on the RCSBP.  It directed him to complete his election and submit it within 90 days or no later than 20 August 1996.  For reasons unknown, the FSM did not submit a response.

3.  The FSM could have enrolled his spouse for RCSBP coverage was during two authorized Open Seasons, which was last conducted from 1 March 1999 through 28 February 2000 and from 1 October 2005 to 30 September 2006.  Again, the FSM made no effort to enroll.

4.  The FSM had three opportunities to enroll in the RCSBP.  However, there is no evidence that he did so.  Therefore, there is insufficient evidence on which to base granting the applicant the requested relief.  

5.  With respect to the applicant's support to her deceased husband's military career, the Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by her and the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of her deceased husband's service in arms.

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)                                         AR20090010696



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ABCMR Record of Proceedings (cont)                                         AR20090010696



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