IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100011469 


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 reconsideration of her earlier petition for correction of the records of her deceased husband, a former service member (FSM), to show he elected Survivor Benefit Plan (SBP) coverage for her at the time of his retirement.  

2.  The applicant states she and the FSM were married on 31 July 1999, and he retired on 31 August 1999.  She claims at no time were they informed that paperwork needed to be filled out nor were they counseled regarding the proper paperwork to be completed or a time limit for application for SBP protection.  She further states they were never informed of the Open Enrollment period between
1 October 2005 and 30 September 2006, or that they could fill out paperwork during that period that would ensure her eligibility for SBP benefits.  She claims the FSM did know he would receive a military retirement application packet that would have included forms necessary to apply for SBP benefits.  She claims they were unaware of the process required to ensure she was covered by the SBP in case of the FSM's early death.  

3.  The applicant further states the FSM received the military retirement packet in January 2009, with directions indicating he needed to complete the forms and return them at least 9 months prior to his 60th birthday.  However, the FSM celebrated his 58th birthday on 5 February 2009, and died of a massive heart attack on 28 February 2009.  She claims there was no indication the FSM was at risk for a heart attack and he had just received the retirement paperwork, including the SBP election form, the month before his death.  

4.  The applicant also states the FSM named her his beneficiary and power of attorney in his last will and testament.  She claims she was also named the beneficiary on all other small civilian pensions and life insurance policies.  She indicates the FSM wanted to protect her and their home and without a military pension their home, which the FSM loved so much, is at risk to be lost.  

5.  The applicant provides the following documents in support of her reconsideration request:

* Congressional Inquiry Packet
* Indiana Army National Guard (INARNG) Adjutant General and Deputy Division Commander, 38th Infantry Division, INARNG, letters of support
* FSM's Death Certificate
* Marriage Certificate
* FSM's Notice of Eligibility
* Retirement Points Statement
* Army National Guard Separation Document
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Forms 214 (Reports of Separation from Active Duty) 
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), dated 21 January 2010.

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 ABCMR in Docket Number AR20090005391, on 21 January 2010.  

2.  During the original review of the case, the Board found no evidence indicating the FSM ever made a Reserve Component SBP (RCSBP) election.  It further concluded there was no evidence showing he added his wife within a year of their marriage or that he sought to enroll her in the SBP during an open season enrollment period.  As a result, the Board concluded there was no legal basis to grant the applicant relief and that unfortunately she was not entitled to an annuity under the SBP.  

3.  The applicant now submits a self-authored statement indicating that she and the FSM were never counseled regarding SBP enrollment procedures and two letters of support from senior officers of the INARNG as new evidence.  



4.  The supporting letters from the INARNG general officers attest to the outstanding service of the FSM and confirm the circumstances surrounding the timing of his receiving his retirement packet and his death.  They also allude to poor retirement counseling in the Reserve Components (RC) at the time.  Neither confirms the applicant was or was not counseled on RCSBP/SBP processing requirements.  

5.  The FSM's record confirms he received his Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) on 30 October 1992.  

6.  On 31 July 1999, the FSM married the applicant, and on 31 August 1999, he retired from the INARNG and was transferred to the Retired Reserve.  

7.  The FSM's record is void of any indication that he submitted a DD Form 1883 
(SBP Election Form) for RCSBP protection after receiving his 20 Year Letter, within 1 year of his marriage to the applicant, or when he retired from the INARNG.  

8.  On 28 February 2009, the FSM died at the age of 58.  

9.  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.  A member must make 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.  The law permits an eligible, formerly unmarried member who marries subsequent to making an RCSBP election to cover an eligible spouse if coverage is requested prior to the first anniversary of the marriage (within 1 year of marriage).  

10.  Army Regulation 135-180 implements 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 RC 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.  

11.  Chapter 3 of the same regulation 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's request for reconsideration and the new evidence she has provided has been carefully considered.  However, there remains insufficient evidence to support granting the requested relief. 

2.  By law and regulation, a member must submit an RCSBP election within
90 days of receiving his/her 20 Year Letter.  If no election form is submitted within the established time frame, a member must wait until he/she applies for retired pay and elect to participate in the standard SBP.  An eligible member who marries after making an RCSBP election must apply for SBP coverage for the new spouse within 1 year of marriage.  

3.  The new evidence submitted by the applicant fails to corroborate her claim the FSM intended to provide her RCSBP coverage prior to reaching age 60.  The supporting letters provided comment regarding the lack of RCSBP counseling at the time; however, they fail to confirm the FSM intended to provide the applicant RCSBP protection prior to his applying for retired pay at age 60.  Absent any evidence the FSM attempted to cover the applicant during the period between when he was issued the 20 Year Letter and when he could have submitted his application for retired pay at age 60, regrettably there remains an insufficient evidentiary basis to support granting the requested relief.  

4.  In view of the facts of this case it would be contrary to law and regulation to amend the original Board decision in this case.  

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 AR20090005391, dated 21 January 2010.



      _______ _   _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)                                         AR20100011469



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ABCMR Record of Proceedings (cont)                                         AR20100011469



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