IN THE CASE OF:
BOARD DATE: 17 December 2014
DOCKET NUMBER: AR20140002423
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 records to show he made a Reserve Component Survivor Benefit Plan (RCSBP) election for spousal coverage.
2. The applicant states:
a. On 12 November 2013, she received notification of denial for SBP benefits.
b. There are two overwhelming reasons why denial of SBP benefits is unjust and must be reinstated. Separately, either of the two reasons are enough for the decision to be overturned and justice restored. Together, these two reasons border on bureaucratic indifference and ineptness, further compounding the injustice by adding undue and needless suffering in the delay of SBP benefits.
c. The FSM served 27 honorable years in the U.S. Army Reserve (USAR). He served in two declared wars and he was deployed by order of the President to other missions.
d. She wants to make clear that in addition to Operations Desert Shield/
Desert Storm and Operation Iraqi Freedom, the FSM was deployed to Israel from 1 March 1998 through 21 June 1998 to protect Israel against biological attack from Iraq. His mission during this deployment was to set up a series of air-monitoring equipment. During this same deployment period, the FSM qualified for his 20-Year Letter from the USAR. The combination of his Israeli deployment and simultaneous receipt of his 20-Year Letter is the reason she is disputing denial of SBP benefits.
e. The FSM was deployed when the 20-Year Letter was supposedly sent to him. In fact, the letter was sent to his house in Alabama and not to him in Israel. He, by regulation, had 90 days to respond to the letter and make an SBP election or wait until age 60. While all the emphasis has been placed on her to find documents from 1998 to prove the FSM opted into the SBP, it is her belief that the FSM, while deployed to Israel, never received that letter. Additionally, to assume he read it when he returned home on 21 June 1998 is a stretch.
f. While deployed, the FSM worked with Colonel (COL) M____. COL M____ has written a letter of support and maintains the FSM did not know about the
20-Year Letter in 1998 because the FSM never mentioned it.
g. She maintains the letter was never sent to the FSM while he was deployed because the letter is addressed to his home of record. Thus, he would never have had the opportunity to select or decline the SBP option.
h. If the Board can produce an additional letter that clearly shows it was sent to his deployment location in addition to his home of record, it would be greatly appreciated. This is important because the FSM had 90 days to make this determination, yet he was not redeployed to the United States until after 21 June 1998.
i. The grace period had already taken 30 days off his 90-day decision period, leaving him only 60 days to respond, providing he even knew the letter had been sent to his house. The end result is that he was denied proper notification protocols, which caused the lapse of his 90-day period without making any decision on the SBP.
j. She understands the need for a suspense in obtaining any action; however, it was sent by the Army to his house while the Army sent him to Israel, so he did not get it. This is ironic and would be a funny story if the consequences of this were not so grave. This is unjust and should not be allowed to stand.
k. The second injustice is the law itself. The period when the FSM earned his 20 Year Letter he had 90 days to opt into the SBP. In January 2001, the regulation was changed so that service members automatically were enrolled in the maximum SBP until and unless a written declination was given by both, the service member and his spouse. This regulation was revised because of situations arising exactly like the FSM's. The law in its current form "assumes" Soldiers with spouses are in the SBP until "they" opt out. These Soldiers do not opt out with a simple piece of paper, they opt out in person with the spouse present and then both are required to sign a form that is then notarized and placed in their file.
l. This is a major revision of the regulation. In fact, it is a 180-degree change from the previous way the law was written. When a change this drastic is made, it is an admission that the law was written unjustly and its basic intent (to provide SBP) was disrupted because of a flawed process. Yet, this flawed and obsolete law is being held up as the "gold standard" and is why she is being denied SBP benefits. If the FSM had not served during Operations Desert Shield/Desert Storm, or if he had been less dedicated and taken a couple of years off of his Reserve career, he would have earned his 20 Year Letter after 2001 and he would have been in the post-2001 system where he would have been automatically enrolled.
m. She does not believe the SBP guidelines were made to punish hardworking, dedicated USAR Soldiers and yet that is the net result of this. The emphasis for all of this is on the day the 20-Year Letter is earned. The FSM did not retire until 2 September 2006. This was over 5 years after the law had changed and over 8 years from the day that he earned the 20-Year Letter. That should be the day he should have been told to make an SBP election. The previous law was poorly written and has been corrected. Do not lock him into the bad law; the consequences are too harsh for the family. This is unjust and should not be allowed to stand.
n. The SBP is the FSM's legacy to his wife and his family. It is his legacy and the U.S. Government's obligation for the 27 years of dedicated and honorable service to this country that included two wars, 4 years of deployment away from his family, and countless weekend drills. Yet, her request for the SBP is being denied for two reasons -- first because he never personally received the SBP letter of notification while on deployment and second, because he fell in between the revision of a flawed regulation that was rewritten after he returned from his deployment in Israel. The FSM deserves to have this injustice reviewed and the decision reversed in order to provide SBP to his surviving family members.
3. The applicant provides:
* a letter from the Retired Pay Branch, U.S. Army Human Resources Command (HRC)
* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 21 June 1998
* the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
*
a third-party letter of support
* marriage and death certificates
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 23 July 1956. He was appointed as a Reserve commissioned officer on 21 April 1978.
2. The FSM and the applicant married on 24 October 1979.
3. On 21 May 1998, the USAR Personnel Command issued the FSM a 20-Year Letter. This letter notified him that he had completed the required years of service to be eligible for retired pay at age 60, upon application. This letter further informed him that:
a. He was entitled to participate in the RCSBP, as established by Public Law 95-397.
b. RCSBP enabled him to provide an annuity for his spouse and other eligible beneficiaries.
c. He had, by law, only 90 calendar days from the date he received this notice to submit a DD Form 1883 (SBP Election Certificate).
d. If he did not submit an election within 90 calendar days, he would not be entitled to SBP coverage until he applied for retired pay at age 60.
e. If he did not elect coverage and should die before reaching age 60, his survivor(s) would not be entitled to benefits.
4. There is no indication the FSM made an RCSBP election within the
90-calendar day period.
5. The DD Form 214 provided shows he served on active duty in support of Operation Southern Watch from 1 March 1998 to 21 June 1998.
6. The FSM was promoted to the rank/grade of COL/O-6 on 20 November 2002.
7. The FSM's Chronological Statement of Retirement Points indicates he was transferred to the Retired Reserve on 1 September 2006. It also shows he completed 27 qualifying years of service toward non-Regular retirement.
8. The FSM died on 21 August 2013 at age 57. His death certificate shows he was married to the applicant.
9. There is no evidence indicating the FSM inquired about the RCSBP or that he attempted to correct his records to show he made an RCSBP election prior to his death in August 2013.
10. According to the HRC Soldier Management System, the applicant submitted an application claiming an SBP annuity as a surviving spouse in or around November 2013.
11. The HRC Retired Pay Branch responded by letter to the applicant stating the FSM had 90 calendar days from the date he received his 20-Year Letter to submit a DD Form 1883 by law. If an election was not made within 90 days, he would not be entitled to SBP coverage until he applied for retired pay at age 60. Because the FSM never made an election and never applied for retired pay, she was not entitled to an SBP annuity.
12. The applicant provided a third-party letter of support in which the author states the following:
a. The FSM was a close friend and colleague for over 15 years and was with him for an extended period during 1998.
b. It is his firm belief the FSM was not aware of the requirement to elect receipt of SBP. Hopefully, this letter will support a favorable decision by the Department of Defense for a highly-decorated and dedicated Soldier who served his country in multiple deployments, such as Israel in 1998 and Iraq in 2003.
c. He would like to convey that during 1998, he and the FSM were together for an extended period as they planned, prepared, and deployed to Israel. They had many close interactions and many very intimate conversations about work, hobbies, family, future plans, and the like. At no point did the FSM mention a
20 Year Letter to him or other requirement for SBP.
d. The FSM was focused on the extremely tough mission in front of them. They also moved throughout the area of responsibility extensively. The mission was not a training exercise, rather a complex operation to protect our troops and partners from an expected harm. Moreover, it was the first time these types of units were deployed and there were many technical and operational details that had to be managed and executed.
e. They were extremely busy. Nevertheless, he believes that if the FSM had known about the SBP requirement, he would have taken care of it or asked for assistance with it. In fact, there were a few times that the FSM asked him or others to support him so he could take care of the family or administrative matters.
f. The FSM always took care of the mission, his troops, and his family, not in priority, but rather he did all of it.
13. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Components Soldiers 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:
a. Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation;
b. Option B: elect that a beneficiary receives an annuity if they die before age 60, but delay payment until the date of the member's 60th birthday; and
c. Option C: elect that a beneficiary receives an annuity immediately upon their death if before age 60.
14. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the FSM's records should be corrected to show he made an RCSBP election for spousal coverage within 90 days of receipt of his 20-Year Letter. She further requests payment of the RCSBP annuity based on his death.
2. By law and regulation, Soldiers who complete 20 or more years of qualifying service are issued a 20-Year Letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP. This is perhaps the most important letter in a Reservists career. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt. The FSM's records do not indicate he elected to participate in the RCSBP within that 90-day period. There is also no evidence indicating the FSM inquired about or attempted to enroll in the RCSBP through the time of his death.
3. By not responding to his 20-Year Letter notification of RCSBP eligibility, the FSM effectively deferred his election to age 60. As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required. Additionally, because it appears he chose to defer his election to age 60, but died before reaching age 60, there was no coverage at the time of his death.
4. The applicant contends the FSM's deployment was the reason he did not take action to enroll in the RCSBP in a timely manner. However, the letter was issued on 21 May 1998. He redeployed about one month later. Even if the FSM never received his 20-Year Letter at that time, there is no evidence he questioned where his 20-Year Letter was for the next 15 years.
5. The applicant's contentions and the evidence submitted were carefully considered; however, it appears the FSM had ample time to question where his 20-Year Letter was and to comply with the law regarding RCSBP enrollment. Further, although the law has changed, Congress did not make it retroactive. The Board is not empowered to make a defacto change where Congress clearly did not intend to do so.
6. Based on the foregoing, there is no evidence of error or injustice in this case. As a result, there is no basis to grant the applicant's 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 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) AR20140002423
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140002423
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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