PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 November 2001                   
	DOCKET NUMBER:   AR2001060889

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage with Reserve Component Supplemental SBP (RC-SSBP).

3.  The applicant states that in the fall of 1996 the FSM was working in Saudi Arabia at his civilian job.  At that time there was confusion when his previous unit submitted retirement papers for him in addition to his having to deal with his father’s death that August and his own continuing illness.  If his notification of eligibility for retired pay at age 60 (his 20-year letter) was received during this time, it went unnoticed while he was trying to deal with these other problems.  The FSM had previously enrolled in the SBP around 1984 when he was placed on the Temporary Disability Retired List (TDRL) and it is unimaginable, with a terminal prognosis, that he would have failed to elect SBP benefits in 1996.

4.  The FSM’s military records show that, after having had prior enlisted service, he was commissioned and entered active duty in August 1971.  He and the applicant married on 2 August 1971.

5.  After having had a right lower lobe lobectomy in 1984, the FSM was placed on the TDRL effective 7 July 1984.  At that time, he enrolled in the SBP for spouse and child coverage, full base amount.  A periodic reexamination found him fit for duty and he was removed from the TDRL effective 29 May 1987.  

6.  On an unknown date, the FSM was transferred to the U. S. Army Reserve.  

7.  In May 1996, the FSM underwent a left thoracostomy with wedge biopsy of the left lower lobe.  The postoperative diagnosis was multiple bilateral pulmonary nodules and frozen section diagnosis consistent with adenocarcinoma.  He was placed on experimental chemotherapy.  

8.  The FSM’s 20-year letter is dated 24 September 1996.  

9.  By letter dated 21 October 1997, the U. S. Army Reserve Personnel Command (AR-PERSCOM) informed the applicant that, as the FSM did not make an RCSBP election within 90 days of the date of his 20-year letter, she would not receive an annuity if he died prior to age 60.  

10.  Apparently, the FSM received a letter dated 1 August 1998 informing him he would have to be discharged or transferred to the Retired Reserve due to attainment of maximum service.  He apparently elected transfer to the Retired Reserve as he was transferred to the Retired Reserve effective 1 February 1999. He also wrote a letter to AR-PERSCOM wherein he expressed surprise that the  1 August 1998 letter did not contain information on the RCSBP.  He noted that his civilian business activities required frequent overseas travel during 1995, 1996, and 1997 and that he did not recall receiving his 20-year letter during that time.  After requesting a copy of his 20-year letter around late 1998, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883, electing to participate in the RCSBP for spouse only coverage, full base amount, option C and to participate in the RC-SSBP, 20 percent.  

11.  The FSM died on 15 April 1999 of lung cancer.  

12.  By letter dated 17 August 1999, AR-PERSCOM responded to an inquiry from the applicant by informing her that the FSM was mailed the SBP packet on 24 October 1996 and he signed for it on 7 November 1996 but failed to return the DD Form 1883 within the 90-day time frame as prescribed by law.  The DD Form 1883 dated 24 February 1999 was not valid as it was not received within the 90 days.

13.  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; (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 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

14.  Public Law 101-189, enacted 29 November 1989, established the SSBP (effective 1 October 1991).  The SSBP annuity (5, 10, 15 or 20 percent of full retired pay) would be paid in addition to the standard 35 percent-tier payment for surviving spouses age 62 and older.  

CONCLUSIONS:

1.  The Board concludes that it would be equitable to show that the FSM enrolled in the RCSBP at the time he received his 20-year letter.

2.  When the FSM was placed on the TDRL in 1984 after undergoing surgery for lung cancer, he enrolled in the SBP.  This indicates to the Board that he understood the gravity of his condition and did not engage in “denial.”

3.  In May 1996, the FSM was diagnosed with a recurrence of his lung cancer.  After further surgery, he was placed on chemotherapy.  On 7 November 1996, the date AR-PERSCOM’s records show he signed for his 20-year letter, he was undergoing this therapy.  The Board concludes that he was medically incapacitated at that time and did not understand that he had to make a new RCSBP election.  Considering the FSM’s previous action with regard to enrolling in the SBP, the Board agrees with the applicant’s contention that the FSM would have enrolled in the RCSBP and RC-SSBP upon receipt of his 20-year letter had he understood the requirement to do so.

4.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM concerned enrolled in the RCSBP for spouse only coverage, option C, full base amount and the RC-SSBP, 20 percent on        1 December 1996.

2.  That the applicant be paid the RCSBP annuity retroactive to the date of the FSM’s death.

BOARD VOTE:  

__aao___  __le____  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060889	
SUFFIX		
RECON		
DATE BOARDED	20011127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.