IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015679 


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 a Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).  

2.  The applicant states she was denied an SBP annuity after 31 years of service by the FSM and 30 years of marriage.  She claims that while disappointed in the Board’s decision, she continued to search for any documentation that would sway the Board in her favor.  She indicates she found the SBP election form her husband completed and a copy of the envelope in which it was delivered.  She claims the letter notifying her husband of retirement eligibility is dated in April 1997; however, the envelope in which it came with the SBP forms was postmarked 28 October 1997, and the SBP forms were completed by the FSM in December 1997, within 90 days of the receipt date of the letter and forms. 

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

* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* DD Form 1883 (SBP Election Form), dated 10 December 1997
* ARPC Form 3854 (Reserve Component Supplemental SBP Election Certificate), dated 10 December 1997
* Envelope with Certified Mail/Return Receipt Stamp, postmarked 28 October 1997
* Marriage Certificate
* FSM’s Death Certificate
* Third-Party Letters

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 AR20100000361 on 20 July 2010.

2.  During its original review of the case, the Board found no evidence indicating the FSM made a Reserve Component SBP (RCSBP) election within 90 days of receipt of his Twenty Year Letter or at anytime subsequent to the notification.  

3.  The applicant now provides as new evidence SBP election forms and the envelope she claims the Twenty Year Letter and SBP forms arrived in. 

4.  The record contains a Notification of Eligibility for Retired Pay at Age 60 issued by the U.S. Army Reserve Personnel Center (ARPERCEN), dated           16 April 1997.  In this notification, the FSM was advised that he was eligible to participate in the RCSBP which enabled him to provide an annuity for his spouse and other eligible beneficiaries.  

5.  The applicant provides an envelope she claims the Twenty Year Letter and SBP forms arrived in which is postmarked 28 October 1997.  She also provides a DD Form 1883 in which the FSM elected full “Spouse” coverage, dated             10 December 1997, and an ARPC Form 3854 in which the FSM elected to participate in the RCSBP Supplemental SBP (RC-SSBP) at the 20 percent level, also dated 10 December 1997.  

6.  The applicant also provides a third-party letter from the FSM’s former commander who states the FSM was a meticulous, detail-oriented person and never failed to complete any assigned task whether written or a performance- oriented assignment.  The former commander also indicated he could state with certainty that it was the FSM’s intent to ensure his family was provided for.  He states based on his knowledge and discussions with the FSM, he can only determine that the lack of signature was either an oversight, which he seriously doubts, or a clerical error; however, in any case the FSM’s intent was clear.  

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 RCSBP 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 notification of eligibility to receive retired pay at age 60 (20-Year Letter) or else wait until he/she applied for retired pay at age 60 and elect to participate in the standard SBP.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration of her earlier petition to receive an SBP annuity based on the death of her husband, an FSM, has been carefully considered and found to have merit.  

2.  The new evidence provided by the applicant shows the FSM completed the required SBP plan election forms on 10 December 1997, within 90 days of receipt of his Twenty Year Letter, as evidenced by the envelope provided that contained the documents, which is postmarked 28 October 1997.  

3.  The new evidence further supports a conclusion that the FSM intended to provide coverage for the applicant and while there is no evidence indicating these documents were ever processed, given the character of the FSM as attested to in the supporting statement, it is reasonable to conclude this was the result of administrative error and not evidence that the FSM did not intend to provide SBP coverage for his wife of more than 30 years.  As a result, given the length of their marriage and the applicant’s contributions to the military by supporting the FSM for over 30 years of his military service, it would be appropriate to err in her favor and accept the new evidence as showing it was the intent of the FSM to provide immediate RCSBP coverage for his spouse.  

4.  Given the documents provided by the applicant, it would be appropriate and serve the interest of justice and equity to correct the record to show the FSM elected full immediate RCSBP coverage under Option C for his spouse and supplemental coverage at the 20 percent level within the required timeframe, and to provide the applicant the SBP annuity due from the day after the date of the FSM’s death.  All premium costs associated with this election and coverage change is the responsibility of the applicant.  



BOARD VOTE:

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR AR20100000361, dated 20 July 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM elected full immediate RCSBP spouse coverage under Option C within the required 90 day period, that his election was received and processed by the appropriate office in a timely manner, and by providing the applicant an SBP annuity based on this coverage.  All premium costs associated with this election and coverage change is the responsibility of the applicant.  



      _______ _   __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)                                         AR20110015679



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ABCMR Record of Proceedings (cont)                                         AR20110015679



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