IN THE CASE OF:	  

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20120023025 


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), requests correction of the FSM's military records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states she is being unjustly denied RCSBP benefits because the FSM was delinquent in submitting paperwork.  She contends that she was not able to oversee his actions to ensure the paperwork was completed.  The FSM was diagnosed with liver cancer and died 5 months before reaching 60 years of age.

	a.  In a letter, dated 4 December 2012, the applicant states the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), informed her she was not eligible for SBP coverage because the FSM did not complete a DD Form 1883 (Survivor Benefit Plan Election Certificate) within 90 days of notification of eligibility for retired pay at age 60.  She also states the FSM told her the SBP would help take care of her after his death.  She was not married to the FSM at the time when the DD Form 1883 was to be submitted; therefore, she had no control over the paperwork.  She married the applicant on 2 June 2001.  She feels it is an injustice to deny her benefits that he served so long to acquire and which he clearly wanted her to have.

	b.  In letters, dated 27 and 30 December 2012, the applicant further states the FSM suffered from attention deficit disorder which would have contributed to his failure to complete the SBP paperwork in a timely manner.  He was not treated for this condition until 2002.

3.  The applicant provides copies of:

* Orders C-05-018937, U.S. Army Reserve (USAR) Personnel Center, dated 2 May 1989
* Orders 208-10, New Mexico Army National Guard (NMARNG), dated 27 October 1988
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 1 November 1988
* Special Orders Number 15 AR, NGB, dated 28 January 1992
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 29 July 1994
* DD Form 1883, dated 8 May 1995
* Marital Settlement Agreement, dated 12 September 1996
* letter from FSM to attorney concerning settlement agreement, dated 16 September 1996, with enclosure (Monthly Child Support Obligation)
* letter from FSM to attorney, dated 18 September 1996
* letter from FSM's attorney, dated 18 September 1996
* memorandum, U.S. Total Army Personnel Command, dated 13 December 1996, subject:  Promotion as a Reserve Commissioned Officer of the Army under Title 10 of U.S. Code (Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers))
* Orders C-09-931525, USAR Personnel Command, dated 24 September 1999
* Marriage License, dated 2 June 2001
* DD Form 2656-5 (RCSBP Election Certificate), dated 26 March 2011
* Orders P11-940043, HRC, dated 30 November 2011
* Certificate of Death, dated 9 April 2012
* Orders P11-940043, HRC, dated 19 October 2012
* letter to the applicant from the HRC Retired Pay Branch, dated 22 October 2012
* Privacy Release Form, dated 4 December 2012
* letter from the FSM's physician, dated 30 December 2012

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 13 September 1952.  On 27 December 1973, he was appointed in the USAR as a commissioned officer.  On 19 March 1978, he was promoted to captain/pay grade O-3.

2.  On 1 February 1986, the FSM was released from active duty as a member of the Reserve due to failure of promotion.  He was transferred to the USAR Control Group (Reinforcement).

3.  On 10 January 1987, the FSM was appointed in the NMARNG in the rank of captain/pay grade O-3.  On 1 November 1988, the FSM was separated from the NMARNG due to expiration of the maximum time for declination of promotion.  He was transferred to the USAR Control Group (Reinforcement).

4.  The FSM was issued his 20-year letter on 29 July 1994.  It informed him that he had, by law, a 90-day period from the date he received this letter to submit his DD Form 1883.  The letter further stated that if he did not submit an election within 90 calendars days he would not be entitled to SBP coverage until he applied for retired pay at age 60.  If he did not elect coverage and should die prior to attaining age 60, his survivors would not be entitled to SBP benefits.

5.  The DD Form 1883 provided by the applicant indicates that the FSM completed the form and signed it on 8 May 1995.  He indicated his election as spouse only at the rate of his full retired pay and elected option B for coverage at age 60.  It further appears that the spouse concurred with option B as his election.

6.  On 12 September 1996, the FSM entered into a settlement agreement concerning his dissolution of marriage, custody of their minor child, and distribution of their community property.

7.  A memorandum from the U.S. Total Army Personnel Command (currently known as HRC), dated 13 December 1996, subject:  Promotion as a Reserve Commissioned Officer of the Army under Title 10 of U.S. Code (Army Regulation 135-155), announced the FSM's promotion to lieutenant colonel/pay grade O-5 effective 1 November 1995.

8.  Orders C-09-931525, USAR Personnel Command (currently known as HRC), dated 24 September 1999, assigned the FSM to the Retired Reserve effective 1 October 1999.

9.  The marriage license provided by the applicant shows she and the FSM were married on 2 June 2001.

10.  The DD Form 2656-5 provided by the applicant shows the FSM elected the deferred annuity (option B) providing for an annuity to begin on his 60th birthday should he die before that date.  He also indicated he wanted the annuity to be based on his full retired pay for spouse only coverage.  The form is signed by the FSM and is witnessed and dated 26 March 2011.

11.  The FSM's death certificate provided by the applicant shows the FSM died on 6 April 2012 as a result of complications of liver cancer.  The FSM was born on 13 September 1952 and was 59 years of age when he died.

12.  On 22 October 2012, the Chief, Retired Pay Branch, HRC, informed the applicant that because the FSM had not made an RCSBP election within the 
90-day period allowed and subsequently died prior to reaching 60 years of age when he would have applied for retired pay, she was not entitled to SBP coverage and her SBP package was returned without action.  She was advised that she had the option of applying to this Board if she thought there was an error or injustice in her case.

13.  On 30 December 2012, the FSM's physician wrote a letter to the Board on behalf of the applicant.  The physician stated the FSM had been diagnosed with having an attention deficit disorder and depression for which he was receiving medication.  The physician believes the FSM had some degree of encephalopathy from his impaired liver function.  His condition caused him great difficulty in his personal and work life.  The physician asked the Board to consider the FSM's condition when deciding this case.

14.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Changes in SBP options are not authorized except in specific instances or by law.

15.  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 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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility for retired pay at age 60 or else have waited until he or she applied for retired pay and elected to participate in the standard SBP.  If the service member failed to make an election, it defaulted to option A.

16.  Public Law 108-375, enacted 28 October 2004, established an open enrollment season from 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 newsletter published triannually designed to keep Army Retired Soldiers and family members abreast of their rights and privileges).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's military records should be corrected to show he elected to participate in the RCSBP.  She further contends that she should be entitled to receive an SBP annuity.

2.  The available evidence clearly shows the FSM was married and had two minor children when he received his 20-year letter, dated 29 July 1994.  However, there is no evidence showing he submitted or attempted to submit a DD Form 1883 within the 90-day period allowed by law.  It appears that he did attempt to submit this form on 8 May 1995, approximately 10 months later.  However, because he was no longer within the legal time frame, this election was invalid.

3.  The FSM was subsequently divorced and married the applicant in 2001.  However, because he had eligible dependents at the time he received his 
20-year letter and failed to make a timely election, the only options available to the FSM were through an open enrollment season or through an election made in conjunction with his application for retired pay, had he lived long enough to submit such.

4.  In 2004, there was an open season for enrollment in SBP.  However, there is no evidence showing the FSM attempted to submit an election during this period.

5.  The FSM was subsequently diagnosed with having liver cancer.  He died within 5 months of reaching his 60th birthday.

6.  There is no evidence of error or injustice in this case.  The FSM had the opportunity to make an election when he received his 20-year letter.  Since he had been found to be sufficiently capable to be promoted through the ranks, to lieutenant colonel in 1995, the argument that his attention deficit disorder contributed to his failure to complete the DD Form 1883 in a timely manner does not appear to be valid.  Again, he could have made an election when the open enrollment season was available in 2005.  Unfortunately, his unexpected illness did not allow him to reach his 60th birthday so he could submit an election.
7.  In view of the above, the applicant's request should be denied.

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)                                         AR20120023025



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ABCMR Record of Proceedings (cont)                                         AR20120023025



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