IN THE CASE OF:	  

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120006907 


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, in effect, that the records of her late husband, a former service member (FSM), be corrected to show he elected Reserve Component (RC) Survivor Benefit Plan (SBP) coverage for her.

2.  The applicant states:

	a.  The FSM was suffering from the beginning stages of microvascular dementia in 1993.  This condition continued to worsen until he was placed under the guardianship of his sister in February 2003.  When they married on 9 April 1994 he no longer had the proper capacity to handle his normal life activities to the measure of his past performance.  Her late husband was later incarcerated due to errors in judgment.  During the 1-year window for the FSM to change his beneficiary once they were married, he was dealing with multiple health and criminal issues.

	b.  She spoke to her Congressman's office and she understood she could apply for her late husband's military retirement since he was unable to complete the correct paperwork in 1994.  Her late husband qualified for retirement in 1991. 
He was not married at the time and elected to give his retirement to his sister on his DD Form 1883 (SBP Election Certificate).  The FSM retired from the Army National Guard (ARNG) in June 1992 due to his medical condition from a railroad accident in 1988.

	c.  They met in 1993.  The FSM was first diagnosed with the beginning stages of dementia in 1993, was prescribed medication, and continued to work.  They were married on 9 April 1994.  While working on his car it accidentally caught on fire.  He was prosecuted and placed in jail.  One of his sisters was able to get him released.  He was placed in a number of assisted living facilities until his death in 2006.

	d.  During the court proceedings for guardianship her attorney advised that it would be in the best interest of the FSM if she allowed his sister to become his guardian due to her knowledge and access to resources.  Her husband was placed in the care of his sister by the court on 24 February 2003.  This sister applied for his retirement on 19 March 2003 and cited that she (applicant) had refused to accept guardianship of her husband.  It is her understanding that her late husband's sister is receiving the retirement payments.  She is asking for the FSM's RCSBP since he was having medical and criminal issues due to his mental state and failed to update his military retirement election within the required time frame.

3.  The applicant provides:

* FSM's 1965 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* FSM's DD Form 1883
* FSM's National Guard Bureau Form 22 (Report of Separation and Record of Service) and discharge orders
* FSM's ARNG Retirement Points History Statement
* marriage license
* Answers of Interested Persons to Petition for the Appointment of a Guardian information sheet
* court guardianship order
* FSM's death certificate
* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 2762 (Direct Deposit Authorization)
* Congressional inquiry and transmittal sheet

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 24 October 1940.  His military records show he enlisted in the ARNG on 13 October 1973 with prior active Army enlisted service.

2.  On 20 September 1991, he was issued a 20-year letter.

3.  On 8 December 1991, the FSM completed and signed a DD Form 1883.  The form shows the FSM marked the "No" blocks in section II (Marital, Dependency, and Election Status).  He marked the "Yes" block for Natural Person with Insurable Interest.  He elected option C (Immediate Coverage) in item 9c.  The FSM identified his sister, Linda S. K____, as the person he wanted to receive an annuity in Section IV (Insurable Interest Coverage).  The FSM signed the form and his signature was witnessed as required on 8 December 1991.

4.  The DD Form 1883 reverse explained that if option C were elected the member was making an election to provide an immediate annuity beginning on the day after the date of the member's death, whether before or after age 60.  Annuity for the natural interest person was 55 percent of retired pay remaining after the cost of coverage had been subtracted.

5.  The FSM was honorably discharged from the ARNG in pay grade E-6 on 5 June 1992 and was transferred to the Retired Reserve.  He was credited with completing 24 years, 7 months, and 23 days of total service for retired pay.

6.  The FSM and the applicant, Linda L. K____, were married on 9 April 1994.

7.  The FSM reached age 60 on 24 October 2000.

8.  On 24 February 2003, the Circuit Court for Allegany County, MD, appointed the FSM's sister, Carol R. D____, as his guardian.

9.  A DA Form 2656, dated 19 March 2003, shows the FSM's sister, Carol R. D____, completed and signed the form.  In section IX (SBP Election), item 26d, she marked the block to elect coverage for the person named in item 26 (Beneficiary Category(ties)) who had an insurance interest in him.  She also elected full gross pay with supplemental SBP.  In section X (Remarks), the FSM's sister stated she had been appointed as guardian and power of attorney for the FSM due to mental incompetence and his spouse refused to accept guardianship for him.

10.  A DD Form 108, dated 19 March 2003, shows the FSM's sister, Carol R. D____, applied for retired pay for the FSM with a beginning date of 24 October 2000.

11.  The FSM died on 26 September 2006.  His death certificate lists his sister, Carol D____, as the informant.

12.  On 23 August 2011, the applicant submitted a request to a Member of Congress pertaining to her entitlement benefits from the ARNG on behalf of her husband, the FSM.

13.  A staff member of the Defense Finance and Accounting Service (DFAS), Retired Pay Section verified that it has no record of receiving notice of the new marriage and provided a copy of the same DD Form 1883 submitted by the applicant.

14.  Public Law 92-496, effective 1 October 1976, reduced the waiting period for new spouse's eligibility to 1 year following post-retirement marriage.

15.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement and participation in SBP 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.  

16.  Public Law 106-398, enacted 30 October 2000, required Reserve and Guard members who had completed their service obligation and were considered entitled to retired pay but who were not yet age 60 to obtain their spouse's concurrence in RCSBP elections that did not provide maximum spouse coverage (immediate option).  The law applied to members receiving notification of service completion after 1 January 2001.

17.  Department of Defense Financial Management Regulation, volume 7B, chapter 46, specifies the annuity is payable only to the natural person with an insurable interest as designated by or on behalf of the member.  The annuity amount is 55 percent of the member's gross retired pay less the cost of coverage at the time of the member's death.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was issued a 20-year letter on 20 September 1991.  On 8 December 1991, he completed a DD Form 1883 electing a natural person with insurable interest coverage.  The FSM was 

discharged from the ARNG on 5 June 1992 and was transferred to the Retired Reserve.

2.  The copy of the DD Form 1883 provided by the applicant and located on file at DFAS shows the name Linda S. K____ as the beneficiary and identified that individual as his sister.

3.  There is no evidence the FSM ever made an RCSBP spouse-only election, added his wife (the applicant) within a year of their marriage, or sought to change his insurable interest coverage by adding the applicant.

4.  The FSM reached age 60 on 24 October 2000.  On 24 February 2003, another sister, Carol D____, was appointed as his guardian with power of attorney due to his mental incompetence.  On 19 March 2003, this sister applied for retired pay for the FSM with a beginning date of 24 October 2000.  She stated on the form that the applicant refused to accept guardianship for the FSM.  

5.  It appears the FSM elected to participate in the RCSBP with his sister Linda as an insurable interest person.  There is no evidence of record and the applicant has not provided sufficient evidence showing the FSM was so mentally incompetent in 1994/1995 that he could not make a spouse-only RCSBP coverage election within 1 year of their marriage.  The court declared his sister Carol as his guardian in 2003, and the applicant provides insufficient evidence to refute the sister’s claim that she (the applicant) refused to accept guardianship.  There was no coverage for the applicant at the time of the FSM's death.

6.  The applicant's contentions and documents she provided were carefully considered.  However, based on the foregoing, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to an annuity under the RCSBP/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)                                         AR20120006907



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ABCMR Record of Proceedings (cont)                                         AR20120006907


   
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