IN THE CASE OF:
BOARD DATE: 25 OCTOBER 2012
DOCKET NUMBER: AR20120003292
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 requesting correction of the military records of her deceased husband, a former service member (FSM), to show he applied for retired pay and enrolled in the Survivor Benefit Plan (SBP) for spouse coverage, and that she receive the SBP annuity due based on the FSM's death.
2. The applicant states she never waived her right to the SBP. She claims her husband turned age 60 on 18 July 2006 and during that time he was in and out of the hospital for a variety of medical issues ranging from alcoholism to cirrhosis of the liver. Further, he suffered from some post-traumatic stress disorder issues for which he was awarded a 30-percent disability. She states the FSM was treated at the Department of Veterans Affairs (VA) Medical Center, Biloxi, Mississippi, in April 2006 to remove a benign neoplasm at the cerebellum. In her opinion, the FSM was not capable of submitting his retirement papers.
3. The applicant provides a self-authored statement with a list of medical events affecting the FSM's medical treatment between October 2003 and March 2007 with corresponding documentation identified in the document in support of her request.
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 AR20070009568 on 13 December 2007.
2. The applicant provides health summaries from the VA pertaining to the FSM's treatment between 2003 and 2007 as new evidence which warrant consideration by the Board.
3. During the original review of the case, the Board found no medical evidence that showed the FSM was mentally impaired to a point that would have made it difficult for him to apply for retired pay. The Board further determined that given that the SBP was linked to retired pay, there was no basis for granting the applicant's request to correct the FSM's record to show he enrolled in the SBP for spouse coverage.
4. The FSM was born on 18 July 1946. Having prior enlisted service, he was commissioned as an officer in the U.S. Army Reserve (USAR) on 16 May 1967.
5. On 26 December 1970, the FSM married the applicant.
6. On 1 July 1987, the FSM was issued a Notification of Eligibility for Retired Pay (20-year letter). The record is void of a DD Form 1883 (SBP Election Form) that should have been completed at the time.
7. On 20 November 1996, the applicant was transferred to the Retired Reserve.
8. On 18 July 2006, the FSM reached age 60. There is no indication he applied for retired pay upon attaining age 60.
9. On 18 March 2007, the FSM died.
10. The health summaries provided by the applicant contain information documenting his treatment between 2003 and 2007 and impressions gained during these treatment sessions for this period. The last summary containing a comment regarding the FSM's mental health was dated 22 June 2006 and indicated the FSM was considered capable of independently managing financial, legal, or medical decisions at the time. The medical summaries also confirm he was separated from his wife for six or seven years as of 8 July 2004, and that he indicated he could no longer live with her.
11. Public Law 95-397, the Reserve Component SBP (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. 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 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. In other words, failure to elect an option now results in the defaulted election of option C.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of the FSM's records to show he applied for retired pay and enrolled in the SBP for spouse coverage, and receipt of the SBP annuity due based on the FSM's death has again been carefully considered. However, there remains insufficient evidence to support this claim.
2. The VA medical treatment records pertaining to the FSM provided by the applicant as new evidence show the FSM suffered from and was dealing with many medical issues between October 2003 and March 2007. These summaries confirm he had been separated from his wife for six to seven years as of 8 July 2004, and felt he could no longer live with her. These medical summaries also show that as of 22 June 2006, he was still considered capable of independently managing financial, legal, or medical decisions.
3. The medical treatment records provided by the applicant fail to show the FSM was not mentally capable of submitting his request for retired pay. To the contrary, they show medical authorities confirmed he was capable of independently managing financial, legal, or medical decisions. As a result, given the medical evidence supports the original decision in this case, there is an insufficient evidentiary basis to support amendment of the original decision in this case.
________ ________ ________ 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 AR20070009568, dated 13 December 2007.
_______ _ 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) AR20120003292
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ABCMR Record of Proceedings (cont) AR20120003292
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