BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002418 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ _____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002418 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 Army Board for Correction of Military Records set forth in Docket Number AR20140006475, dated 30 December 2014. _____________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. BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002418 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 former service member (FSM), requests reconsideration of her earlier request to correct the FSM's records to show she is eligible to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity. 2. The applicant states: a. She requests reconsideration of her application for RCSBP based on her late husband's mental state, starting in January 2013. He began to experience bouts of anxiety and depression, insomnia, suicidal ideation, and loss of interest in many things he had previously enjoyed and took pride in. He started to dread going to work and many times he was unable to get out of bed for days. In early 2013, her late husband's primary care physician contacted her while he was in her office and instructed her to not leave him alone, and to take him to the emergency room for a psychological evaluation. He was admitted into a respite care center for 6 days. During his stay, he was given antidepressants and started psychiatric care. b. He was taken off his medication in July 2013 due to the side effects and it seemed he was doing better. In October 2013, he called her letting her know he was feeling panicked and again experiencing suicidal ideation, and wanted her to take him to see a counselor. She picked him up at the U.S. Army Reserve (USAR) Center and took him to see his counselor. He was prescribed a new antidepressant and an appointment was scheduled for the following week. The day of the appointment, she came home from work to drive him to his appointment and she found him dead in his office. c. When her late husband was able to function, he did go to work and performed to the best of his ability. Prior to this mental state, he earned several awards and was a perfectionist when it came to the unit's records. d. Her late husband's medical records provide insight into his mental state, which drastically changed his ability to think and process thoughts clearly. e. Although they had been together for over 33 years, they hadn't been married very long before he became ill. He was going to retire in March 2014 and she firmly believes he was going to complete the RCSBP and retirement paperwork. f. Her late husband was a very loyal man and he dedicated 26 years of his life to the USAR. It was very unlike him not to complete important paperwork and she is certain the state of his mental health caused this oversight. She and their two daughters are trying to learn to live without him. While the retirement money would help, it is most important to them that his life dedication to the USAR does not simply get dismissed. 3. The applicant provides: * FSM's numerous medical records * two memoranda from Sergeant First Class (SFC) C____ J. B____, dated 28 October 2016 and 23 December 2016 * numerous character-reference statements 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140006475 on 30 December 2014. 2. The applicant's contentions are new evidence that were not previously considered by the Board and warrant consideration at this time. 3. The FSM was born on 15 March 1954. He enlisted in the USAR on 14 February 1985. 4. On 17 March 2005, the FSM was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). Paragraph 4 of this memorandum described the RCSBP and his entitlement to participate. He was informed he had 90 calendar days from the date he received the notice to submit an election using the enclosed DD Form 2656-5 (RCSBP Election Certificate) or DD Form 1883 (Survivor Benefit Plan Election Certificate). 5. There is no evidence showing the FSM made an RCSBP election. 6. His records contain a DD Form 93 (Record of Emergency Data), dated 30 December 2008, showing he was single and had two daughters born in 1988 and 1990. He listed the applicant as his beneficiary for the death gratuity and indicated she was his fiancée. 7. The FSM was assigned to the Retired Reserve effective 11 August 2011. 8. He married the applicant on 20 December 2012. 9. The applicant provided medical documentation showing the FSM was diagnosed with acute depression on 23 April 2013 and admitted to the Community Elements Respite Center for treatment from 23 April 2013 to 29 April 2013. 10. The FSM died on 17 October 2013 at age 59. His death certificate shows he was married to the applicant at the time of his death. 11. On 21 March 2014, the Chief, Reserve Component Retirements Branch, U.S. Army Human Resources Command, denied the applicant's request for the survivor benefit annuity because she had not been married to the FSM for a full year. 12. On 30 December 2014, the ABCMR denied the applicant's request for an RCSBP annuity. 13. The applicant provided a memorandum from SFC C____ J. B____, dated 28 October 2016, wherein he stated: a. It was well known that the FSM and the applicant had been together (living as a married couple would) since before he joined the military. The FSM would introduce the applicant as his wife and they have two daughters together. b. In March 2005, the FSM received his 20-year letter; he was not married and therefore could not select an option for spouse coverage. c. He provided several documents proving the FSM viewed the applicant as his wife. d. The FSM received his retired pay application in February 2013. He died 2 months prior to his 1-year anniversary. He was going through many health issues in the last year of his life. He missed a lot of work and was hospitalized a couple of times. He knows without a doubt that the FSM loved his wife and daughters more than anything else and he would have taken care of them if he hadn't been so sick. e. The FSM told him he needed to add the applicant to his retirement benefits, but he needed to read through the information first. He was a perfectionist and researched everything before submitting anything. He tried to instill this in all the unit administrators. Unfortunately, with all the illnesses he was dealing with, he never accomplished this very important task. f. The FSM was his mentor and supervisor. Although it has been 3 years since he left, he is still missed greatly by so many Soldiers whom he helped, especially him. The military needs people who are more like the FSM. He gave so much of himself to others. He placed everyone's needs ahead of his own. He appealed to the Board to take care of the FSM as he did for so many others and grant his widow his military retirement benefits. 14. The applicant provided a second memorandum from SFC C____ J. B____, dated 23 December 2016, wherein he provided the FSM's timecards for the last year of his life. From pay period ending 23 February 2013 to pay period ending 5 October 2013, the FSM took 580 hours of leave, mostly sick leave, amounting to 72 1/2 days. This was out of character for the FSM. He rarely took a day off. There were many days that he worked during the last year that he shouldn't have because he was not feeling well. His workload changed dramatically the last year of his life due to a commander who placed extreme stress on him. The new demands from this commander were beyond what any one person could perform. 15. The applicant also provided numerous character-reference statements from Soldiers, friends, and co-workers attesting: * the FSM and applicant lived as a couple for years and raised two daughters * he was a dedicated family man and worker * his health declined during the last year of his life * approving the applicant's request is the right thing to do REFERENCES: 1. 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 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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 2. Public Law 108-375, enacted 28 October 2004, established an open enrollment season from 1 October 2005 through 30 September 2006. This law required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes, the official newsletter for retired Soldiers, surviving spouses, and families. 3. Title 10, U.S. Code, section 1447(7), defines "widow" as the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least 1 year immediately before his death or is the mother of issue by that marriage. 4. 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. DISCUSSION: 1. The evidence shows the FSM was not married when he received his 20-year letter in 2005 and he was not eligible to enroll in the RCSBP for spouse coverage at that time. He had two daughters, at least one of whom at 15 years of age qualified as a dependent; however, he did not elect child coverage. 2. There is no evidence the FSM's failure to elect coverage in 2005, well prior to the decline in his mental health, was anything other than a conscious and knowing choice. Failure to elect coverage for the child dependent that he did have effectively closed RCSBP/SBP to the FSM absent an open enrollment season or an election at age 60. 3. Unfortunately, there is no basis for relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002418 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2