IN THE CASE OF:	  

		BOARD DATE:	  27 August 2014

		DOCKET NUMBER:  AR20130022162 


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, in effect, correction of her late husband's record to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states:

	a.  The U.S. Army Human Resources Command (HRC) erroneously shows the FSM did not elect RCSBP coverage for her.

	b.  Based on documentation in support of her application, the FSM should be presumed to have completed and submitted his DD Form 1883 (SBP Election Certificate) electing RCSBP.

	c.  The Board previously has recommended correction of records to show entitlement to an RCSBP annuity in similar circumstances.  See Army Board for Correction of Military Records (ABCMR) Docket Number AR20070005343, dated 2 October 2007.

	d.  The FSM served over 30 years in the Army National Guard (ARNG) and he was honorably discharged on 30 September 2008.  They married in 1993, he was notified of his eligibility for RCSBP in October 1999, and he died on 4 February 2013.

	e.  In February 2013, she applied for RCSBP benefits following the FSM's death.  In May 2013, HRC stated the FSM never elected RCSBP according to their records and she was not entitled to any benefits.

	f.  While the Army does not possess a DD Form 1883 that was completed by the FSM, it does possess a Servicemembers' Group Life Insurance (SGLI) election and certificate showing the FSM elected the maximum SGLI coverage for his wife.  It is more likely than not that a Soldier who sought maximum SGLI coverage for his wife also would have sought maximum RCSBP coverage for her.

	g.  The FSM also granted his wife complete control over all of his financial assets.  It is more likely than not that a Soldier who would grant his wife complete control over all of his financial assets also would have sought maximum RCSBP coverage for her.

	h.  The FSM had no other source of a pension, except for the RCSBP.  He worked as a handyman and as an independent contractor doing maintenance.  When he said his wife would get his pension, he meant his RCSBP.  Thus, it is more likely than not that he believed he had elected RCSBP coverage for his wife because he completed and submitted the DD Form 1883 which was then lost.

	i.  It is more likely than not that a Soldier who loved his wife and was meticulous about paperwork would have sought maximum RCSBP coverage for his wife.  It is unlikely that a truthful Soldier who knew he was going to die before the age of 60 (when another RCSBP election would have been possible) would lie and say his wife would receive a pension when he knew he had not elected RCSBP coverage.  Instead, it is more likely than not that the FSM believed he had elected RCSBP coverage for his wife because he completed and submitted the DD Form 1883 which then was lost.

	j.  The standard for proving an error or injustice is preponderance of the evidence.  This Board has held that although HRC does not have a DD Form 1883 on file showing RCSBP coverage was elected, that does not mean an FSM did not complete and submit the form (ABCMR Docket Number AR20070005343, dated 2 October 2007).  The Board also held that witnesses' affidavits regarding the likelihood an FSM would have completed the form to elect RCSBP were sufficient to presume an FSM did complete the form, so that the FSM's records should be corrected to show the widow is entitled to an annuity.

	k.  The documentary evidence demonstrates the FSM loved and trusted his wife and wanted to provide for her.  Therefore, by a preponderance of evidence, it is more likely than not that the FSM elected RCSBP coverage for his wife and that the paperwork was lost or misplaced.
 
3.  The applicant provides 14 exhibits outlined in her statement.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 19 February 1955.  Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve (USAR), he enlisted in the ARNG on 24 February 1981.  He married the applicant on 17 April 1993.

2.  On 24 October 1999, he was issued his notification of eligibility for retired pay at age 60.  This letter states if he failed to return the DD Form 1883 within the 
45-day suspense period or failed to elect coverage "your dependents will not receive any benefits if you should die before age 60."  Records at HRC do not show the FSM ever made an SBP election.

3.  The FSM was honorably discharged from the ARNG in the rank of master sergeant on 30 September 2008 and he was transferred to the USAR Control Group (Retired Reserve).

4.  On 4 February 2013, he died at the age of 57.

5.  On 9 May 2013, HRC denied the applicant's request for the survivor benefit annuity.  The denial letter states:

* by law, the FSM had 90 calendar days from the date he received his 
20-year letter to submit a DD Form 1883
* according to HRC records, the FSM never made an election
* the applicant is not entitled to a survivor benefits annuity

6.  The applicant provides a statement, dated 27 August 2013, from a retired California Army National Guard (CAARNG) master sergeant who attests:

* he knew the FSM for approximately 19 years
* they bonded through their military service and became best friends
* he loved his wife very much
* he doesn't believe a Soldier who loved his wife as much as the FSM did would leave her unprotected by not electing coverage for her under the RCSBP
* the FSM was very organized and very meticulous
* he kept all of his military records in clearly-labeled boxes in his garage
* he believes if the FSM had received a DD Form 1883 he would have completed and submitted it or he would have retained the uncompleted form in these boxes
* he did not review the records in these boxes after the FSM's death, but he understands the FSM's wife did and could not find a DD Form 1883
* this causes him to believe the FSM completed and submitted the DD Form 1883 when he received it
* he visited the FSM when he was hospitalized and the FSM told him his wife would get his pension and social security  

7.  She provides a statement, dated 21 November 2013, from a retired CAARNG chief warrant officer five who attests:

* he has known the FSM for 25 years
* the FSM was very organized
* the FSM did not let paperwork go without acting on it
* he believes if the FSM received the RCSBP paperwork he would have completed and submitted it
* he saw the FSM while off duty
* he loved his wife very much and he is sure the FSM would have elected coverage for her under RCSBP 

8.  She also provides a copy of ABCMR Docket Number AR20070005343, dated 2 October 2007, wherein the ABCMR granted relief in a similar case.  In this case, the ABCMR noted:

	a.  there was no DD Form 1883 on file showing the FSM elected RCSBP.

	b.  the FSM had a personal and family history of a heart condition.

	c.  highly credible individuals occupying senior positions in the Army and Federal government affirmed that the FSM informed them at one time or another that he had enrolled in the RCSPB because he felt a strong compulsion to do so based on his personal and family medical histories. 

9.  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.



10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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 were available:

	a.  elect to decline enrollment and choose at age 60 whether to participate in the SBP,

	b.  elect that a beneficiary receive an annuity if they die before age 60 but delay payment 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.

11.  Before the law was amended in October 2000, 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 wait until he/she applied for retired pay and elect to participate in the standard SBP.  Failure to elect an option resulted in the default election of option A to decline enrollment and choose at age 60 whether to participate in the SBP.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the witness statements were carefully considered.  However, there is no evidence the FSM made an RCSBP election in 1999.

2.  The applicant contends that the ABCMR has granted relief in a similar case.  However, the ABCMR reviews each case individually based on its own merit and evidence presented.  There are no cases that set the standards on how the Board should always vote.  In addition, the other case in question showed a personal and family history of a heart condition. 

3.  The law required the RCSBP election to be made within 90 days of receiving the 20-year letter or the opportunity to elect coverage was deferred until age 60.  It appears the FSM made no election.

4.  The applicant’s support statements also have contradictory information in them.  The FSM’s notification of eligibility for retired pay at age 60 stated if he failed to return the DD Form 1883 within the 45-day suspense period or failed to elect coverage "your dependents will not receive any benefits if you should die before age 60."  The support statements indicate the FSM was very organized and very meticulous, and if the FSM had received a DD Form 1883 he would have completed and submitted it or he would have retained the uncompleted form in these boxes because he did not let paperwork go without acting on it.  They also indicated that if the FSM had received the RCSBP paperwork he would have completed and submitted it.  

5.  Yet, if the FSM had not received the DD Form 1883, then unfortunately it appears he did not apply due diligence in attempting to obtain the form.  Or, if he had received it and submitted it, the statements indicate he would have kept a personal copy for himself.

6.  Regrettably, there is insufficient evidence to show the FSM completed and submitted the DD Form 1883 in the required time frame.  Therefore, there is no basis in law or equity for 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 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)                                         AR20130022162



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ABCMR Record of Proceedings (cont)                                         AR20130022162



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