IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110017403 


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), request correction of her husband's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) with spouse coverage.

2.  The applicant states her husband received his Notification of Eligibility for Retired Pay at Age 60 on 22 June 2000.  At the time, he was not married and he did not file a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate).  In addition, the "Twenty Year Letter" did not mention the necessity of making an RCSBP election if he later married.  She further states:

	a.  She and the FSM married on 15 December 2002.  Neither she nor the FSM knew of the requirement to file an RCSBP election within 1 year of their marriage.  The FSM began to have ever-increasing symptoms of dementia.  He died on 6 February 2010, as a consequence of early onset of Alzheimer's Disease, just days before he received his letter welcoming him to the Retired roll of the U.S. Army.

	b.  The applicant states, just as Option C is now automatic for married retiring reservists, it should also be automatic when a retired reservist subsequently marries.

3.  The applicant provides copies of 20 documents that include the FSM's retirement documents, extract of his medical records, the survivor annuity forms that she submitted, and two letters of support.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the FSM's records to show he enrolled in the RCSBP with spouse coverage.

2.  Counsel lists his credentials and provides a summary of the case issue similar to that provided by the applicant.

	a.  He adds the applicant filed a DD Form 2656 (Data for Payment of Retired Personnel) on 7 May 2009 when she became aware of the requirement to file for SBP.  She elected spouse only coverage and signed the form under a power of attorney because of the FSM's advanced dementia.

	b.  He cites:

* Title 10, U.S. Code, section 1448(a), in effect on 22 June 2000, that requires spousal concurrence if the service member elects not to participate in the RCSBP or elects to provide an annuity at less than the maximum level
* Title 10, U.S. Code, section 1455(b) that requires spousal notification of the SBP elections available and the effects of such elections
* the National Defense Authorization Act for Fiscal Year 2001 (NDAA FY01) that requires spousal concurrence for all RCSBP elections that fail to provide for full spousal coverage

	c.  He states the FSM and applicant would have participated in the RCSBP when they married on 15 December 2002 if they had been properly informed and counseled.  He adds neither of them was counseled nor were they aware of the requirement to make an RCSBP election within 1 year of their marriage.  This injustice can be rectified by recognizing the spousal SBP election on the
DD Form 2656, dated 7 May 2009. 

	d.  He states he has found one comparable precedent in Army Board for Correction of Military Records (ABCMR) Proceedings, under Docket Number AR2000049116, dated 14 December 2000.  The military record was corrected to provide for spousal coverage even though the deceased Soldier had not applied for retired pay before his death.

3.  Counsel provides a copy of ABCMR Proceedings, Docket Number AR2000049116.


CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the U.S. Army Reserve (USAR) on 23 May 1980.  Records show he was born on 21 February 1950.

2.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 12 July 1987.

3.  On 22 June 2000, the Director, Personnel and Actions and Services, U.S. Army Reserve Personnel Command, St. Louis, Missouri, notified the FSM that his eligibility for retired pay had been established upon attaining age 60.  He was also notified of his entitlement to participate in the RCSBP established by Public Law 95-397.  The memorandum states "[t]his plan enables you to provide an annuity for your spouse, and other eligible beneficiaries.  By law, you have only 90 calendar days from the date you receive this memo to submit your
DD Form 1883, Survivor Benefit Plan - Election Certificate.  If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60.  If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits. Enclosed is a DD Form 1883 and detailed information about the RCSBP."

4.  Orders 02-310-00059, issued by Headquarters, 81st Regional Support Command, Birmingham, AL, dated 6 November 2002, assigned the FSM to the Retired Reserve effective 31 October 2002.

5.  The FSM's ARPC Form 249-E (Chronological Statement of Retirement Points) shows that as of 1 November 2002, he had completed 22 years, 5 months, and 9 days of qualifying service for retirement.

6.  U.S. Army Human Resource Command, St. Louis, MO (USAHRC-STL) memorandum, dated 18 August 2009, notified the FSM that his application for retired pay had been approved.

7.  Orders P08-909256, issued by USAHRC-STL, dated 18 August 2009, placed the FSM on the Retired list in the rank/grade of SSG (E-6) on 21 February 2010.

8.  A DD Form 1300 (Report of Casualty) shows the FSM died on 6 February 2010.

9.  Orders P08-909256 R, issued by USAHRC-STL, dated 26 February 2010, revoked Orders P08-909256 pertaining to the placement of the FSM on the Army of the United States Retired list due to the FSM's death.
10.  In support of her application, the applicant provides the following pertinent documents.

	a.  A State of Tennessee, Certificate of Marriage, that shows the applicant and FSM were married on 6 December 2002.

	b.  A Vanderbilt University Medical Center, Neurology Consult, dated
15 September 2005, completed by Doctor (Dr.) Howard K-------.

		(1)  The examining physician noted the FSM was a "50-year old man, referred by Dr. R---- for memory loss.  He and his wife state that the memory loss began in approximately 2001, around the time he was in a motor vehicle accident.  He … was 'knocked out' for several seconds, hit from the side
('T-bone'), had to be extracted from the car.  He was able to ask to be taken to the Veterans Administration.  He was admitted for about 2 days.  His memory loss has worsened gradually (according to the patient and his wife)."

		(2)  The physician's impression of the FSM was "Memory loss of moderate degree, especially significant considering his age.  This could be early Alzheimer's disease, though there is a history of head injury as above, and his wife questions heavy aspartame intake."

	c.  A Neuropsychological Evaluation, completed by Michael G. T---------, Ph.D., on 24 January and 9 February 2006, upon referral by Dr. K-------.  The examining psychologist's impressions of the FSM were, "The (FSM) was found to exhibit several areas of significant deficit.  Moderate to severe difficulties were seen in various aspects of visual perceptual abilities (pattern analysis, visuoconstructive abilities) and in visual design reproduction (copying).  A relative sparing was seen in his memory for faces, however, a nonmotor measure of visual retention.  He also demonstrated severe deficits in verbal memory within the context of otherwise relatively spared verbal abilities.  These did not appear to be simply reflective of nonspecific factors, such as poor attentiveness, as his concentration was only mildly compromised.  In addition, anxiety symptoms were noted but only to a mild extent."

	d.  Three medical reports, as follows:

* CT Head without Contrast on 13 September 2005 - Impression:  Normal contrasted head CT
* Brain MRI on 21 September 2005 - Impression:  Mild age related atrophy without evidence of acute intracranial pathology
* Brain Meta Pet CT on 2 March 2006 - Impression:  Decreased uptake in the bilateral parietal-temporal lobes is most consistent with the diagnosis of Alzheimer's

	e.  A General Power of Attorney (with Durable Provision) - Tennessee, that shows the FSM appointed the applicant as his Attorney-in-fact/Agent to act on his behalf on 3 May 2007.  The instrument shows the applicant shall care for, manage, control, and handle all of the FSM's financial, property, and personal affairs in the FSM's name.

	f.  A DD Form 2656 shows the applicant submitted the form under power of attorney for the FSM on 7 May 2009.  It also shows the FSM married the applicant on 15 December 2002 and he had no dependent children.  It further shows an election to participate in the SBP with spouse only coverage based on full gross pay.  The FSM, applicant, and a witness signed the form on 7 May 2009.

	g.  A State of Tennessee, Office of Vital Records, Certificate of Death, issued on 16 February 2010, that shows the FSM died on 6 February 2010.  It also shows the FSM was married at the time of his death and the applicant's name is listed as the informant on the certificate.

   h.  A letter to the FSM by the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay letter, dated 22 February 2010, welcoming him to the Retired roll of the U.S. Army.

	i.  A DD Form 2656-7 (Verification for Survivor Annuity) that shows the applicant verified information relevant to her claim for the FSM's SBP annuity. The applicant signed the DD Form 2656-7 on 10 May 2010.  (The instructions show that the form is to be returned to DFAS.)

	j.  A Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services) that shows the applicant submitted her claim to DFAS for the FSM's unpaid compensation on 1 July 2010.

	k.  A USAHRS-STL memorandum, dated 15 July 2010, that shows the Chief, Transition and Separation Branch, notified the applicant that the FSM did not execute a DD Form 1883.  Since he did not elect into the SBP, no one is entitled to the annuity.

	l.  A letter from Mr. Don B------, dated 12 June 2011, a friend and co-worker of the FSM since 1998.  He recounts recurring incidents of the FSM's forgetfulness at work and also during church services and fellowship meetings.
	m.  A joint letter from Mr. Don K-----------, Jim D---, and John S-----, of The Church in Nashville, dated 12 June 2011.  They knew the FSM personally and in a spiritual advisory capacity since 1996.  They all noticed the FSM was forgetful and were particularly concerned about his short-term memory lapses after his car accident in July 2001.

	n.  DD Form 2656-5 (RCSBP Election Certificate) that shows the applicant had completed the form by indicating Option C (Immediate Annuity) based on full retired pay.  The DD Form 2656-5 also shows the applicant and a witness placed their signatures on the document on 23 August 2011.

11.  Applicant's counsel provides ABCMR Docket Number AR2000049116 as a precedent for the applicant's case.  The case corrected the military records of an FSM to show the applicant (the FSM's spouse) was entitled to an RCSBP annuity effective the date following the FSM's death.

	a.  In this case, the FSM was notified of his eligibility for retired pay at age 60 in December 1977.  He turned age 60 in December 1998 and died in January 1999.  There was no evidence the FSM completed a DD Form 1883 or that the spouse was informed the FSM could participate in the RCSBP.

	b.  At the time, Title 10, U.S. Code, section 1448, provided that if a person made an election not to participate in the RCSBP, the person's spouse would be notified of that election.  Spousal concurrence was needed only when a married person elected to provide an annuity for his spouse at less than the maximum level.

12.  A review of a DD Form 1883 (1 December 1976) shows in section II (Marital, Dependency, and Election Status):

	a.  item 9c (see instructions on reverse):

* Option A (Defer)
* Option B (Age 60)
* Option C (Immediate coverage)

	b.  The reverse of the form shows:  Item 9c (This item applies only to Reserve and National Guard members who have been notified that they have completed the required years of recognized Federal service to be eligible for retired pay upon application at age 60.)

		(1)  Instructions for item 9c - You should elect one of the options offered under item 9c.
		(2)  The following is an explanation of each option:

* OPTION A - I DECLINE TO MAKE AN ELECTION AT THIS TIME.  (I will remain eligible to make an election for coverage at age 60.
* OPTION B - I ELECT TO PROVIDE AN ANNUITY BEGINNING ON THE 60TH ANNIVERSARY OF MY BIRTH SHOULD I DIE BEFORE THAT DATE, OR ON THE DAY AFTER DATE OF DEATH SHOULD I DIE ON OR AFTER MY 60TH BIRTHDAY
* OPTION C - I ELECT TO PROVIDE AN IMMEDIATE ANNUITY BEGINNING ON THE DAY AFTER DATE OF MY DEATH, WHETHER BEFORE OR AFTER AGE 60

13.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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.

	a.  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 the service member dies before age 60, but delay payment of it until the date of the member's 60th birthday; and (C)  elect that a beneficiary receive an annuity immediately upon the service member's 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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

	b.  Before the law was amended, as noted below, 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.  Failure to elect an option resulted in the default election of Option A.

14.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to delay making an RCSBP election until age 60.  The law is applicable to cases where twenty-year letters have been issued after 1 January 2001.  Failure to elect an option now results in the default election of Option C.

15.  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 1 year after the date on which that person marries or acquires that dependent child.

16.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes, a Retired Army personnel bulletin mailed to Retired Soldiers and SBP annuitants three times a year since January 1979.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her deceased spouse should be corrected to show he enrolled in the RCSBP with spouse coverage.

2.  The evidence of record shows the FSM received his Twenty-Year Letter with the accompanying SBP forms in June 2000.

	a.  There is no evidence the FSM made an RCSBP election within 90 days of receipt of this notification.

	b.  At the time, the FSM was not married to the applicant.

3.  As a matter of information, the fact that the applicant was not married to the FSM at the time he was notified of his eligibility for retired pay at age 60 is an essential difference between the applicant's case and the case her counsel offers as precedent in deciding her case.

	a.  Specifically, in the referenced case, the law required that the spouse be notified [emphasis added] of the FSM's SBP decision; however, spousal consent [emphasis added] was not required at the time.  As such, failure to make an election resulted in the default election of Option A (i.e., elect to decline enrollment and choose at age 60 whether to start standard SBP participation).

	b.  In addition, the law requiring written spousal consent for a Reserve service member to delay making an RCSBP election until age 60 (i.e., otherwise a default election of Option C, Immediate Coverage) is applicable to cases where 


twenty-year letters have been issued after 1 January 2001.  In the applicant's case, the FSM was issued his twenty-year letter in June 2000 and he was not married at the time [emphasis added].  Moreover, he did not submit a DD Form 1883.  Therefore, the referenced case is not similar.

4.  Although the FM had a 1-year window in which to enroll the applicant in RCSBP after their marriage, he did not do so.  He also did not enroll her during the 2005-2006 Open Season enrollment period.

5.  Unfortunately, the FSM died before reaching age 60, the effective date of standard SBP election.

6.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110017403



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ABCMR Record of Proceedings (cont)                                         AR20110017403



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