IN THE CASE OF:	  

		BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120005565 


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 he elected spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP).

2.  She states that after they married her husband did not have the opportunity to change his marital status or his survivor benefits due to his medical condition.

3.  She provides:

* a self-authored letter to the Board
* correspondence from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC)
* the FSM's DD Form 1883 (SBP Election Certificate)
* a DD Form 2656-7 (Verification for Survivor Annuity)
* the FSM's certificate of death
* her and the FSM's marriage license and certificate
* the FSM's withholding and direct deposit forms
* the FSM's Army National Guard (ARNG) Retirement Points History Statement
* a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60
* a memorandum, subject:  Information on a Deceased Retired Guardsman
* medical records



CONSIDERATION OF EVIDENCE:

1.  On 14 November 2001, the Guam ARNG notified the FSM he had completed the required years of service to be eligible for retired pay upon application at age 60.

2.  In January 2003, the FSM completed a DD Form 1883.  In Section II (Marital, Dependency, and Election Status), he indicated he was not married and had no dependent children.

3.  Item 8 (Check One of the Following to Indicated the Type of Coverage You Desire) lists coverage options a through e.  These options are:

	a.  Spouse only,

	b.  Spouse and children,

	c.  Children only,

	d.  Natural person with insurable interest, and

	e.  None

4.  The FSM's DD Form 1883 shows an "X" in the box for item 8e (None).

5.  In item 9a of the DD Form 1883, if the service member has checked item 8a, b, or c, he or she must elect to provide an annuity based on the full amount of retired pay or a reduced amount of retired pay.  The FSM's DD Form 1883 shows an "X" in the box for "Full."

6.  Item 9c of the DD Form 1883 requires the service member to elect one of three options:

	a.  Option A – I decline to make an election at this time.  (I will remain eligible to make an election for coverage at age 60.)

	b.  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 the hatdate of death should I die on or after my 60th birthday.

	c.  Option C – I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60.

7.  Item 9c of the FSM's DD Form 1883 shows an "X" in the box for option C.

8.  The applicant provides medical records showing the FSM underwent treatment for brain and lung cancer beginning in March 2010.  The records show he underwent surgery to remove a brain tumor on 11 March 2010 after being admitted to a hospital on 8 March 2010 complaining of confusion, headaches, and vomiting.  These records are silent on the issue of his mental state subsequent to his surgery.

9.  She provides:

	a.  a license and certificate of marriage showing she married the FSM on 26 March 2010 and

	b.  a certificate of death showing the FSM died on 24 June 2011 at 54 years of age and was married to her at the time.

10.  The applicant provides a letter from the Chief, Retired Pay Branch, HRC, dated 27 February 2012, in response to the applicant's inquiry concerning her eligibility for an RCSBP annuity based on the FSM's military service.  HRC reviewed the FSM's file and noted he had declined to enroll.  HRC also noted he would have had the opportunity to make another election when he applied for retired pay and that he could have enrolled within 1 year of their marriage.  HRC further noted that since the FSM did not elect to participate in the RCSBP, the applicant was not entitled to an RCSBP annuity.

11.  In her letter to the Board, she states, in part:

	a.  The DD Form 1883 indicates her husband elected option C, but the correspondence she received from HRC indicated otherwise.  She requests clarification regarding this matter.

	b.  Sometime in March 2010, she brought her husband to a hospital due to memory loss and poor appetite.  Doctors informed her that he had a large mass on the left side of his brain and a large mass on his right lung.  He was immediately admitted for emergency surgery to remove the mass on his brain.  His recovery after surgery was remarkable.  A week later he was discharged and referred to a cancer center for a biopsy on his right lung.


	c.  A few weeks later, they were saddened to hear he was diagnosed with metastatic lung cancer.  He underwent chemotherapy for several months.  Unfortunately, the treatments did not slow the growth of tumors in his head or the cancer in his lungs.  His condition deteriorated rapidly and he was placed under hospice care.  Three days into hospice care, he passed away.

	d.  As evident in the medical records she has provided, her husband's state of mind was not at 100 percent.  His ability to remember incidents was very poor, his speech was slurred, and he had difficulty recognizing close family members, let alone remembering to change his RCSBP election after his marriage.

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for 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.  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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

13.  Members who do not have a spouse when they make their RCSBP election may change their election to spouse coverage within 1 year of marriage.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of the FSM's record to show he elected spouse coverage under the RCSBP.

2.  The applicant notes conflicting information on the DD Form 1883 completed by the FSM in January 2003.  The form indicates he elected RCSBP coverage based on the full amount of his retired pay and option C, but because he had no eligible dependents, he properly elected "None" from the list of coverage options.  The controlling fact is that he had no eligible dependents in January 2003.  Therefore, he could not elect to participate in the program at that time.

3.  The FSM married the applicant shortly after he underwent surgery to remove a brain tumor and the applicant states his recovery was remarkable.  He died in June 2011 after he had been married to the applicant for over a year, but the fact remains that he did not elect to enroll his spouse in the SBP.



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 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)                                         AR20120005565



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ABCMR Record of Proceedings (cont)                                         AR20120005565



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