IN THE CASE OF:	  

		BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20130015593 


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 his previous request for correction of his records to show he elected enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) under option A vice "children only" option C (immediate coverage).

2.  The applicant states, in effect, he is presenting a new argument that was not previously considered and new documents to support the argument.

3.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) AR20120015283, dated 19 March 2013, with cover letter and attachments previously submitted
* United States District Court for the District of Columbia (DC) Memorandum Opinion, dated 13 July 2011
* 11 pages of a Defense Finance and Accounting Service (DFAS) booklet titled Your Guide to Survivor Benefits, dated March 2009
* ABCMR ROP AR20050002726, dated 13 December 2005, hereafter referred to as the cited case

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 ABCMR in Docket Number AR20120015283, on 19 March 2013.
2.  As a new argument the applicant states when he received his 20-year letter and submitted his RCSBP election in 1997, he was single but he had a dependent child.  He believes he was coerced into electing Option C, because he had a daughter who was confined to a wheelchair, even though she was self-supporting and over the age of 18 which made her ineligible.  He was told to make the election or no one would get his survivor benefits:

	a.  His argument is that in his case the Board failed to consider that a physician's statement is required to establish that a child is incapable of self-support.  In the cited case considered by the ABCMR, relief was granted solely based on the fact of the lack of required supporting documents required by law.  In addition, in the United States District Court ruling in Wilhelmus versus (v) Geren that he provided states the BCMR cannot be arbitrary or capricious when evaluating cases that are virtually the same.  In the ROP of his previous case the Board even quoted its own findings of the cited case but failed to apply those standards to his case.

	b.  In addition, in his previous case and the cited case, the Board recommended his daughter and the former service member's (FSM) son commit a felony in order to obtain survivor benefits.  In his case, the Board stated his daughter could have either become more disabled or had a doctor falsify documents to say she was incapable of self-support after his (the applicant's) death in order to obtain benefits.  In the cited case, the Board stated the FSM's son could have increased his load at school to full-time after the FSM's death to obtain benefits. 

	c.  In both his request and the cited case, it was argued that the beneficiary for SBP named on the DD Form 1883 (SBP Election Certificate) was ineligible to be a beneficiary.  In his case, his daughter was listed because she was disabled and in the cited case, the son was listed based on full-time enrollment in school.  In both cases, they were both misinformed as to what the qualifications were to claim their children as dependents.  In his case, even though his daughter was in a wheel chair, she was capable of self-support.  In the cited case, the FSM's son was enrolled in post-secondary school but was not a full-time student.

	d.  In his previous case, he provided evidence of his child's ability to support herself by submitting a deed that showed she owned a house as a single woman.  In the cited case, not only was the applicant not required to show proof of full-time enrollment in a post-secondary school, the Board found the failure of the government to request documentation as the major basis in granting the applicant full relief.

	e.  To be eligible to be claimed as a dependent, his daughter would have to be disabled and incapable of self-support.  According to RCSBP rules, he would have had to provide documentation from a physician to show she was incapable of self-support.  However [when he completed the DD Form 1883], there was no documentation requested or provided.  If documentation had been requested, he would have known that his daughter was not an eligible beneficiary and by law he would not have been able to participate in the RCSBP.

	f.  In the cited case, the ROP stated "the evidence of record shows the applicant was not an eligible SBP participant in 1995 because he had no dependent and no wife" and "in view of the error on the part of government officials caused by not following their own regulatory guidance during the applicant's RCSBP processing, it is appropriate to rectify the resultant error at this time."  In addition, in the cited case the ABCMR obtained an opinion from the U.S. Army Human Resources Command (HRC).  

	g.  That is the same situation he was in.  Would not the statement made in the cited case also make him ineligible to participate in the RCSBP? 

3.  As new evidence the applicant provides a United States District Court for the DC Memorandum Opinion for Wilhelmus v. Geren (Civil Action No. 09-662) wherein the applicant was separated from the U.S. Military Academy because of repeated failures of the Army Physical Fitness Test incurring a $137,630 debt to the government for failing to fulfill his contractual obligations.  He had requested the ABCMR grant him relief from the debt and correct his records to show he did not owe the debt.  The ABCMR denied his request and he petitioned the court based on the contention that the ABCMR did not adequately consider its precedents.  The court opinion stated, in part:

	a.  The Administrative Procedure Act "sets forth the full extent of judicial authority to review executive agency action for procedural correctness."  It requires courts to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  An agency is required to "examine relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts and the choice made."  

	b.  Plaintiff maintains the ABCMR acted arbitrarily and capriciously when it affirmed the Army's decision to seek recoupment of more than $130,000 from him for failing to complete his obligations to the Army.  He argues the ABCMR's decision in his case was arbitrary and capricious because the Board did not properly distinguish relevant precedent.  Defendant stated the ABCMR was not bound by precedent because it is a board of equity but he has not cited a single case in support of this novel legal argument.  On the contrary, in this Circuit, "it is axiomatic that an agency must treat similar cases in a similar manner unless it can provide a legitimate reason for not doing so.  Indeed, a "fundamental norm of administrative procedure requires an agency to treat like cases alike and an agency "must provide an adequate explanation to justify treating similarly situated parties differently. "

	c.  This is not to say that the broad discretion afforded to the ABCMR does not grant it significant flexibility in judging the merits of each application for review.  Even if the ABCMR is not required to distinguish every similar prior decisions, the need to consider relevant precedent becomes especially acute when a plaintiff has pointed to a specific prior decision as very similar to his own.  In such cases, the Board may not simply ignore such precedent for the sake of expediency.  To do so would leave open the possibility that two identical cases would be decided differently.  Nothing could be more arbitrary or capricious.

	d.  The case was remanded to the ABCMR by the court for reconsideration of the applicant's initial request.  The applicant's request was reconsidered and on 17 November 2011, his request was again denied.

4.  The applicant also provides a DFAS handbook wherein it stated, in part, under the section SBP/RCSBP annuity for child beneficiaries:

	a.  Child annuitants must meet the following requirements to be eligible for the SBP/RCSBP annuity:  (1)  The child must have been the member's dependent at the time of death.  (2)  The child must be under age 18 and unmarried, or between ages 18 and 22, unmarried, and a full-time student.  (3) Entitlement to the annuity stops effective the first day of the month in which the child reaches age 22, leaves school, is less than a full-time student, or marries.

	b.  The SBP/RCSBP annuity is payable to an unmarried incapacitated child over the age of 18 as follows:  (1)  Child is incapable of self-support because of a physical or mental disability which existed before the 18th birthday or was incurred before age 22 while pursuing a full-time course of study.  (2)  Incapacity must be substantiated by a current medical report signed by a medical physician.  (3)  If the medical report certifies the disability is permanent, the annuity is payable for the lifetime of the annuitant.  (3)  If the disability is not permanent, medical certification must be sent to DFAS every 2 years for the annuity payments to continue.

5.  The applicant was born on 13 July 1952.  Having had prior service in the Regular Army, the applicant enlisted in the Arizona Army National Guard (AZARNG) on 31 July 1986.  At that time, he was divorced and had custody of his minor children, Fxxxxxxxx born on 31 August 1976 and Lxxxx born on 4 March 1979.  He served through multiple reenlistments/extensions and attained the rank/grade of sergeant first class (SFC)/E-7.  

6.  On 21 August 1997, the AZARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

7.  On 31 October 1997, he completed a DD Form 1883.  He indicated he was not married and had a dependent child.  He listed this child as Lxxxx, born on 4 March 1979.  He further elected "children only" coverage, full amount, Option C (immediate coverage), under RCSBP.  The DD Form 1883 states:

* Important:  The decision you make with respect to participation in this SBP is a permanent irrevocable decision.  Please consider your decision and its effect very carefully
* I have the following unmarried dependent children under age 22 (or over age 22 and incapable of self-support because of a disability incurred before age 18, or after age 18 but before age 22 while attending school)
* If the retiree does not elect option B or C at this time, and should die before age 60, the survivors will not receive benefits under Public Law
95-397

8.  He was honorably discharged from the ARNG and transferred to the Retired Reserve on 11 January 2004.  

9.  He married his spouse, Kxxxxxxx, on 24 December 2004 (erroneously listed as 22 November 2004 on the previous case).  

10.  On 7 September 2011, he submitted a DD Form 108 (Application for Retired Pay Benefits), effective 13 July 2012.  With this application, he also submitted a DD Form 2656 (Data for Payment of Retired Personnel) wherein it shows he was married to Kxxxxxxx at the time and had no dependent children.  He elected "spouse only" SBP coverage based on the full gross pay.

11.  He was placed on the Retired List on 13 July 2012, his 60th birthday.

12.  He provides a copy of Docket Number AR20050002726, dated 13 December 2005, wherein the Board granted relief to a member who requested his RCSBP election be corrected because at the time he made his election his son was not eligible for the RCSBP.  The Board concluded:
* the member's military service records did not contain evidence of marital status (e.g., divorce decree) or any correspondence from the former spouse regarding the RCSBP
* upon receiving his 20-year letter, he completed a DD Form 1883 on 20 April 1995 and elected "children only" RCSBP coverage under option C (immediate coverage)
* his election certificate listed one child with a date of birth of 17 November 1976 (20 years and 7 months of age at the time) indicating his child was over 18 years of age at the time of his RCSBP election
* the evidence failed to show the Army required the member to provide proof that the child listed on his DD Form 1883 was eligible for the RCSBP based upon being enrolled in full-time education
* the evidence showed the member was not an eligible SBP participant in 1995 because he had no dependent child and no wife (emphasis added)
* government officials did not follow their own regulatory guidance during the applicant's RCSBP processing
* the member's record concerning his enrollment in the RCSBP should be corrected to reflect no enrollment in the RCSBP

13.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

14.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available: 

* Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C: elect that a beneficiary receive an annuity immediately upon their death if before age 60

15.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They normally cannot cancel SBP participation or change options they had in RCSBP; the options automatically roll into SBP coverage.  If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

16.  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.  

17.  Title 10, U. S. Code, section 1452(b)(3) states, in the case of an RCSBP participant who provided child-only coverage during a period before the participant becomes entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed to reflect the coverage provided during the period before the participant became eligible for retired pay and is made without regard to whether there is an eligible dependent child during a month for which the reduction is made.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was single and had custody of his dependent child when he completed his DD Form 1883 on 31 October 1997 and elected to participate in the RCSBP for child only coverage.  His child, listed as Lxxxx, was born on 4 March 1979.  She was 18 years and 7 months of age at the time.  The applicant stated she was confined to a wheelchair, even though she was self-supporting and that she should have been declared an ineligible beneficiary.  However, when he completed this form, he listed her as an eligible beneficiary and acknowledged that he understood the decision he made with respect to the SBP was an irrevocable decision.  

2.  It appears that in the cited case the ABCMR appropriately granted the FSM relief as there was no proof at that time he received his 20-year letter that the applicant had a dependent child.  In that case, the FSM was separated from his spouse and child, his child was almost 21 years of age, and he did not know his child was not eligible for RCSBP coverage.  An advisory opinion was requested from HRC due to the lack of documentation in the FSM's records.  In the applicant's case, documentation was available and an advisory opinion was not required.

3.  In the applicant's case if he had died and his daughter had been a full-time student she would have been eligible to receive the SBP annuity upon his death until she turned 22 years of age on 4 March 2001.  If she was disabled and incapable of self-support, his daughter would have been eligible to receive the annuity upon his death until the present if at that time she presented evidence that certified her disability was permanent.  There is no requirement to supply evidence of a disability or fulltime school enrollment at the time child only RCSBP is elected (emphasis added).  It is for the annuitant to provide current evidence of his/her entitlement upon application for the annuity after the FSM's death.

4.  He married his spouse in December 2004 and he was placed on the Retired List on 13 July 2012.  Between 2004 and 2012, no action was taken by the applicant with regard to the SBP.  There was no intent, evidence, or communication regarding the enrollment of his spouse in the SBP.  Likewise, there was no correspondence with DFAS with respect to the status or health of his child.  He did not exercise due diligence and in an attempt to shift the responsibility to DFAS, he tries to draw parallels between his case and another member's case when they are clearly not the same.  

5.  At the time he submitted his application for retired pay he indicated he was married and elected spouse SBP coverage.  He did so despite knowing that Option C did not allow him to make an election at age 60.  After all, the DD Form 1883 that he signed in 1997 clearly stated only Option A made him eligible to make an election at age 60.  By law, Option C did not give him that right.  As he had already made an RCSBP election he was not eligible to make a new election once he turned age 60.  There is no evidence of an error or injustice.

6.  In view of the foregoing, there is there is insufficient evidence upon which to base granting the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120015283, dated 19 March 2013. 



      _______ _   _______   ___
               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)                                         AR20130015593





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ABCMR Record of Proceedings (cont)                                         AR20130015593



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