IN THE CASE OF:	

		BOARD DATE:	 06 May 2010 

		DOCKET NUMBER:  AR20090013971 


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 correction of the records of her deceased husband, a former service member (FSM), to show that he made a timely election to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states, in effect, that she and her husband completed the DD Form 1883 (Survivor Benefit Plan Election Certificate) on 31 August 1993 and she assumed that he had submitted it to the appropriate officials.  However, after his death in 2000, she discovered that he had made no election.  She continues by stating that it was not until she was moving and discovered a briefcase in the garage containing the original that she realized what had happened.  She continues by stating that she can only assume that because of his poor health he neglected to follow through with the processing of the form and she requests that the Board accept the form at this time.

3.  The applicant provides a two-page letter explaining the details of her application, a copy of an original DD Form 1883, a copy of the FSM’s 20-year letter, a copy of a DARP Form 3856 (Reserve Component Supplemental Survivor Benefit Plan Election Certificate), a copy of a letter transferring the FSM to the Retired Reserve, a copy her marriage license to the FSM, a copy of the FSM’s death certificate, a copy of her birth certificate, and a copy of her current marriage license to her present husband.



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.  On 7 April 1993, the FSM was serving as a U.S. Army Reserve (USAR) major in the Adjutant General Corps when he received his orders transferring him to the Retired Reserve effective 26 March 1993, due to being twice non-selected for promotion.

3.  On 29 April 1993, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  The letter advised him that he had 90 days from the date he received the letter to submit his DD Form 1883 and that if he did not submit his election within 90 calendar days, he would not be entitled to SBP coverage until he applied for Retired Pay at age 60 [29 September 2007].

4.  The FSM died on 23 September 2000 at the age of 52 of acute myocardial infarction and coronary artery disease.

5.  The applicant was born on 24 February 1947 and she remarried on 10 June 2002 at the age of 55 years and 4 months.

6.  The DD Form 1883 provided by the applicant appears to be the original form signed by the FSM and the applicant on 31 August 1993.  The FSM elected full SBP coverage under option C (immediate coverage).  Furthermore, contact with officials at the Defense Finance and Accounting Service (DFAS) shows no SBP election was ever received by DFAS.

7.  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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

8.  Before the law was amended as noted below, a member must have made the election within 90 days of receiving the 20-year letter or wait until he/she applied for retired pay and elected to participate in the standard SBP.  Failure to elect an option resulted in the default election of option A.

9.  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 applicable to cases where 20-year letters have been issued after 1 January 2001.  Failure to elect an option now results in the default election of option C.

10.  Public Law 105-261, enacted 29 November 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be granted an SBP annuity because the FSM neglected to send in the election under the RCSBP due to his on-going illness which resulted in his not having an election under the program has been carefully considered.

2.  Not only has the applicant provided no evidence to support her contentions that the FSM was in such poor health that he could have forgotten to mail the DD Form 1883, the FSM lived for 7 years after being transferred to the Retired Reserve and there is no indication that his decision to not send in his election under the RCSBP was not a rational and informed decision on his part at the time.  However, it is unfortunate that he died before reaching age 60.

3.  It is also unfortunate that at the time the FSM was afforded an opportunity to make an election, spousal concurrence was not required when a service member elected less than full coverage.  However, the fact that the law changed 7 years later does not nullify the FSM's decision to not submit his election at the time nor does it constitute an error or injustice.

4.  Furthermore, the FSM was afforded an opportunity to enroll in the SBP during the Open Season that began on 1 March 1999 and there is no evidence that he elected to do so, which further reinforces what appears to have been his decision to defer election until he reached age 60.

5.  Accordingly, since there is no evidence to show that he ever enrolled in the RCSBP, there is no basis to grant the applicant the relief she is seeking.

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)                                         AR20090013971



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ABCMR Record of Proceedings (cont)                                         AR20090013971



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