IN THE CASE OF:	  

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20140000752 


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 through her counsel, in effect, reconsideration of the request for correction of the records of her deceased brother, a former service member (FSM), to show the FSM enrolled in the Reserve Component Survivor Benefit Plan (RCSBP), Option B (Deferred Annuity), naming her as a natural person with an insurable interest.

2.  The applicant, in effect, defers to her counsel.

3.  The applicant provides no additional documentary evidence in support of her request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, award of the SBP benefits to the applicant (the FSM's sister).

2.  Counsel states:

   a.  the FSM:

* served in the Army National Guard (ARNG) from 1987 until he was honorably discharged on 29 January 2010
* received his 20-Year Letter on 19 February 2008, which stated he had 
90 days to make a selection for a certain type of RCSBP coverage
* was having memory problems and headaches; it was later learned that those problems were a result of brain cancer
* submitted his election certificate on 23 December 2009; after the 
90-day period
* was not married and did not have any children, so he designated his sister as his survivor
* died on 13 October 2010

   b.  Counsel notes that the RCSBP Election Certificate states, "If you do not submit this form as required, your election, if any, will be determined by law."

   c.  Counsel defines injustice, offers context to the term, and concludes that denying survivor benefits in this case is an injustice.

3.  Counsel provides copies of the following documents:

* National Guard Bureau (NGB) Form 55b (Honorable Discharge Certificate)
* Certificate of Death, filed on 27 October 2010

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120002544, on 4 December 2012.

2.  The FSM was born on 28 April 1969.  He enlisted in the ARNG on 30 January 1987.  He remained a member of the ARNG through continuous reenlistments and extensions.

3.  On 19 February 2008, the Director of Manpower and Personnel, Missouri ARNG, Jefferson City, MO, notified the FSM that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year Letter).  The notification informed the FSM of the following:

* having completed the required years of service, he would be eligible for retired pay upon application at age 60
* he was entitled to participate in the RCSBP
* a Reserve Component member who was married would be automatically enrolled in the RCSBP under Option C (Spouse and Child(ren)) coverage based on full retired pay, unless different coverage was selected within 90 days of receipt of the notification letter
* notarized spousal concurrence was required in order to decline full and immediate coverage for annuitants
* failure to meet the requirement would result in the retention of full coverage of the member's spouse and child(ren) (emphasis added)
* the cost for participation would commence upon his receipt of retired pay at age 60

4.  On 2 November 2008, the FSM completed a DD Form 93 (Record of Emergency Data) and indicated that he was single and he had no children.

   a.  The FSM listed his -

* father and mother as next of kin for notification purposes
* father as beneficiary for the death gratuity payment
* mother as beneficiary for unpaid pay and allowances
* sister (the applicant) as the person authorized to direct disposition of his remains and personal effects

   b.  The document was signed by the FSM and a witness.

5.  On 7 March 2009, the FSM completed an SGLV Form 8286 (Servicemembers' Group Life Insurance Election and Certificate).

   a.  It shows, in pertinent part, that he listed the following beneficiaries:

* Principal Beneficiaries –

* Father – 25%
* Mother – 25%
* Sister (Applicant) – 25%
* Sister (Applicant):  Custodian for two (2) minor children – 25%

* Contingent Beneficiaries –

* Sister (Applicant):  Custodian for two (2) minor children – 100%

   b.  The document was signed by the FSM and a witness.

6.  The FSM completed a DD Form 2656-5 (RCSBP Election Certificate).  It shows in:

   a.  Section II (Dependency Information), the FSM indicated that he was not married and that he had no dependent children;
   b.  Section IV (SBP Election) –

* item 12 (Options), he elected Option B (Deferred Annuity)
* item 13 (Type of Coverage), he elected "Natural Person with an Insurable Interest"

   c.  Section V (Level of Coverage), he elected the coverage to be based on full gross retired pay;

   d.  Section VI (Insurable Interest Coverage), he listed Gloria D. P----, Sister (the applicant); and

   e.  Section VIII (Member Signature) shows the FSM signed the document on 23 December 2009 and his signature was not witnessed (emphasis added).

7.  The FSM was honorably discharged from the ARNG on 29 January 2010 and transferred to the U.S. Army Reserve (Retired Reserve).

8.  A State of Mississippi, Mississippi State Department of Health, Vital Records, Certificate of Death, shows the FSM died on 13 October 2010 at the age of 41.  It also shows he was never married and the applicant (the FSM's sister) was listed as the informant of the FSM's death.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  Premiums for insurable interest coverage are generally higher than for any other category of coverage.

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 are available:  (A) elect to decline enrollment and choose at age 60 whether to start RCSBP 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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 (unless married or has dependent children) or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

11.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:

* to the eligible surviving spouse or eligible former spouse
* surviving dependent children in equal shares
* dependent children in equal shares
* natural person designated under "insurable interest" coverage

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and her counsel's argument for reconsideration of the request for correction of the records of the FSM to show that he enrolled in the RCSBP, Option B, naming the applicant as a natural person with an insurable interest in the FSM was carefully considered.

2.  The evidence of record shows the FSM was issued his 20-Year letter in February 2008 notifying him that his eligibility for retired pay had been established upon attaining age 60.  (Counsel acknowledges the FSM received the letter on or about 19 February 2008.)  However, there is no evidence of record that shows the FSM enrolled in the RCSBP within 90 days of receipt the letter or was mentally incapacitated from making such a decision.

3.  The 20-Year Letter clearly states that failure to meet the requirement to submit an RCSBP election within 90 days results in the retention of full coverage of the member's spouse and child(ren).  However, there is no provision for automatic RCSBP enrollment and coverage for a natural person with insurable interest in a service member.

4.  The evidence of record shows the FSM completed documents related to the settlement of his personal affairs in the event of his death.  The two documents were completed in November 2008 and March 2009, respectively, and include beneficiary provisions relating to both of his parents, his sister (the applicant), and two minor children.  Thus, the documents offer evidence of the FSM's cognitive ability to arrange his personal affairs subsequent to the 90-day period that was mandated for him to complete his RCSBP election.

5.  Despite the fact that the FSM completed a DD Form 2556-5 in December 2009 naming his sister (the applicant) as a natural person with insurable interest, at the full retired pay rate, the document is invalid under the law because it was not completed within the 90-day period set forth in the governing statute.

6.  Neither the applicant nor counsel has shown error or injustice in this case.

7.  Therefore, regrettably, there is insufficient evidence that would warrant granting the relief requested.

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 AR20120002544, dated 4 December 2012.




      _______ _   __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)                                         AR20140000752



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ABCMR Record of Proceedings (cont)                                         AR20140000752



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