RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 March 2008 DOCKET NUMBER: AR20070012825 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. Ms. Catherine C. Mitrano Director Ms. Jeanne Marie Rowan Analyst The following members, a quorum, were present: Mr. John T. Meixell Chairperson Ms. LaVerne M. Douglas Member Ms. Jeanette R. McCants Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR20050015385, dated 19 July 2006, wherein the applicant requested, in effect, that the military 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, at the full base amount, Option C. 2. Counsel states, in pertinent part, that the Board in its denial of the applicant's initial request significantly misstated the applicable law, Public Law 106-398, enacted on 30 March 2000. Counsel states the Board in its ABCMR proceedings made an incorrect statement when it stated that the law was only applicable to cases where 20-year letters had been "issued after 1 January 2001." Counsel states that in section 550102, of the applicable statute, the relevant language is as follows: "A member who is married or had a dependent child and who received notice of eligibility for retirement pay after January 2001, is automatically a participant in the plan unless the member elects (with spouse concurrence, if required) not to participate before the end of the 90-day period that begins on the date of such notification." 3. Counsel provided an affidavit from the applicant, six character witness affidavits, a copy of the initial board proceedings, a letter from the Army Transition and Separations Branch to the applicant dated 31 October 2005, a copy of the marital separation agreement between the FSM and applicant, copies of applicable statutes, the FSM death certificate, and the applicant's DD Form 1884 (Application for Annuity Under the Retired Serviceman's Family Protection Plan and/or Survivor Benefit Plan). 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 AR20050015385, boarded on 19 July 2006. 2. On 8 October 2000, records show the FSM successfully completed his twentieth year in the U. S. Army Reserve. The FSM was transferred to the Retired Reserve on 31 January 2001 per Orders 064-19L, dated 5 March 2001, published by Headquarters, 81st Regional Support Command. This order shows the FSM voluntarily transferred to the Retired Reserve from his unit, the 324th Quartermaster Company within 90-days of initially becoming eligible for voluntary transfer to the Retired Reserve. 3. The FSM's notification of eligibility to receive retired pay at age 60 (20-Year Letter) is dated 18 November 2000. The memorandum stated the FSM had 90 days from the date he received the memorandum to submit his DD Form 1883 (SBP Election Certificate) and if he did not submit his election within 90 calendar days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60. If he did not elect coverage and should die before age 60, his survivors would not be entitled to benefits. 4. On 24 September 2003, the FSM died of asphyxiation due to multiple drug overdoses per the official records from the Office of Register of Deeds, Cumberland County, State of North Carolina. 5. On 26 September 2005, the applicant applied for Survivor Spouse Benefits and stated in a personal letter to the Army Reserve Personnel Command (ARPERCEN) that her spouse had received his 20-year letter in December 2000 and that he retired in January 2001. She states the laws changed on 1 January 2001 whereby, the spouse had to acknowledge in writing that the Soldier had elected not to provide RCSBP coverage. She states that she was not aware that her spouse had not made an election for RCSBP, and that since the FSM RCSBP 90-day suspense window was after the new law went into effect that her spouse thought she would be automatically covered under the new law. 6. On 31 October 2005, ARPERCEN denied the applicant's request for RCSBP benefits because to the FSM did not execute DD Form 1883. ARPERCEN stated the FSM was mailed the SBP packet on 11 November 2000 and did not return the DD Form 1833 within the 90-days prescribed by law. ARPERCEN acknowledges that the 90-day decision period for the FSM did extend into calendar year 2001 when the law changed; however, the law did not extend to previous periods of eligibility. 7. Counsel states, in effect, that because of the error in interpretation the Board did not adequately consider all the facts and circumstances in its initial proceedings. Counsel provides the following facts as new evidence to be considered by the Board. a. The applicant is a federal employee who has served over 22-years in the federal government, currently has a Top Secret security clearance, and is employed by the U. S. Army Special Operations Command. b. The applicant thoroughly examined all the FSM’s personal papers looking for a copy of the 20-year notification for eligibility for retirement letter. This letter was not found in the FSM personal papers. c. The FSM and applicant were married on 15 October 1975. They had two children a daughter in 1977 and a son in 1982. The FSM was a family oriented man who financially provided for his family. He entered active duty in 1980 and served to September 1991 when he transferred to the Army Reserves and then retired on 31 January 2001. The FSM is a Desert Storm veteran. d. The applicant offers two possibilities as to why the FSM would not have elected to cover her under the RCSBP. The first is the FSM never received the RCSBP information and compliance packet in the mail. The second is because he potentially was aware of the pending change in the law and thought his wife would be automatically covered. The counsel states that the FSM never received his initial 20-year letter and its RCSBP notification and response documents. e. The applicant managed the FSM’s and family finances to include preparation of income tax returns and filling out forms. She has no recollection or evidence to show that the 20-year letter that was issued on 18 November 2000 was in fact received by the FSM. f. On 30 March 2001, the son died during basic training of an apparent heart attack. The FSM was devastated and became very depressed to the point he missed work, slept extensively, and became withdrawn from family and friends. This behavior was very uncharacteristic of the FSM. The applicant was not able to persuade the FSM to seek medical treatment for the depression. g. In July 2003, the FSM and applicant temporarily separated due to irreconcilable differences and disagreements with the applicant assuming financial responsibility for their mortgage. In the separation agreement, the FSM did agree to provide one-half of his retired pay to the applicant. h. The FSM did seek medical treatment for his depression, but did not follow up with the bereavement or psychological counseling. i. After talking with the applicant by telephone the night before, the FSM in a state of despair and grief over the loss of his 19-year old son, died of asphyxiation caused by a drug overdose on 24 September 2003. 8. Counsel states, in effect, that it appears highly unlikely that the FSM received the 20-year retirement and RCSBP notification as the applicant had no knowledge of the documents in handling the routine family correspondence and financial management of the family's personal financial responsibilities. Counsel, further states, that the volume of correspondence that the Army Reserve Personnel Command prepares and handles is extensive and that a letter reportedly issued prior to the holiday season in November 2000 was either never physically sent or was lost in the mail. 9. Counsel provided a copy of an affidavit from the applicant, the FSM’s wife, and six affidavits from friends of the applicant and FSM. a. The applicant's affidavit states, in effect, that she and the FSM were married nearly 28 years and had legally separated two months prior to the death of the FSM due to irreconcilable differences and disagreements. The applicant and FSM raised two children. In March 2001, the son died of natural causes while attending Army basic training. The loss of their son significantly affected the FSM who entered a severe state of depression. Prior to the loss of their only son, the applicant and FSM had maintained a home together. The applicant states, in effect, she was the primary financial planner and maintained all family financial records to include those of the FSM. The applicant adamantly states that neither the FSM nor she received notification that he was eligible to retire. She does not recall receiving or processing the Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) as she was the one who routinely opened and answered the mail. She does state that the FSM had planned to retire when he did reach 20 years. b. An affidavit from a coworker and friend of the FSM attests to the FSM young adult son's death that had a negative impact on the FSM. He states, in effect, that the FSM truly intended for the applicant to receive his survivor benefits. c. An affidavit from a male friend, Bruce B_____, of the FSM who knew the FSM for 10 years. He provided comfort and guidance to the FSM and applicant after the loss of their young adult son to include giving the eulogy at the child's funeral. He states, in effect, the FSM supplemented his civilian employment with his U. S. Army Reserve income and he stayed the course in the Army Reserve program until he retired in 2001. He also states, in effect, that the FSM absolutely and unquestionably intended for his Army retirement to be utilized as a tool to provide for his family. d. An affidavit from a male friend of the applicant and FSM, Patrick G________, who knew the FSM for 5 years attested to the fact that the FSM was a hard working, diligent family man who provided for his family while the applicant managed the family finances and day to day operations of the house. He attests to the applicant's ability to assist with personal financial management as she helped him with his personal taxes. Patrick G_______ states, in effect, the FSM was a man of honor and that he truly intended to financially provide for his family. e. An affidavit from a male friend of the applicant, Dennis R________, states in effect, he knew the applicant and FSM for approximately 28 years and that the FSM was a family man who never wanted his wife, the applicant, to suffer financially. f. An affidavit from female friend of the applicant, Carol R________, states in effect, she knew the applicant and FSM for approximately 28 years and that the FSM was a family man who never wanted his wife, the applicant, to suffer financially. g. An affidavit from a male friend and coworker of the FSM who knew the FSM for approximately 15 years. The coworker, Van N. P___________, states in effect, that the loss of the FSM’s young adult son devastated the FSM and he witnessed the FSM fall into a state of depression. Van N. P________ states, in effect, that the FSM loved his wife and the he would not have deprived his wife of his survivor benefits. 10. Counsel provided copies of excerpts from DOD Financial Management Regulation, Volume 7B, Chapter 55, dated February 2006 which is the summary of the major changes to the "Reserve Component Survivor Benefit Plan (RCSBP) Election and Election Changes" to DOD 7000.14-R. The change to paragraph 550102, states "Interim change R20-01 requires spousal consent before a reservist declines or defers election of RCSBP." The effective date to implement this change was 1 January 2001. The specific language of paragraph 550102 is "Any member, who is notified of his or her completion of the years of service required for retired pay eligibility under 10 U.S.C. 1223, may elect to participate in the Plan before the end of the 90-day period that begins on the date of such notification. A member who is married or has a dependent child and who received notice of eligibility for retired pay after January 1, 2001, is automatically a participant in the Plan unless the member elects (with spouse concurrence, if required) not to participate before the end of the 90-day period that begins on the date of such notification. Pursuant to 10 U.S.C. 1448(a)(2)(B), this period starts on the date the Soldier receives the notice. 11. The counsel provided a copy of the separation agreement between the applicant and the FSM, which shows the couple separated on 7 July 2003 due to irreconcilable differences and disagreements. This agreement states that the FSM agreed to give the applicant one-half (1/2) of his military retirement pay. 12. As additional supporting documents, the counsel provided two separate copies from the Fayetteville Independent Light Infantry Company, which shows a Resolution of Respect for the FSM and for the FSM’s young adult son upon their sudden deaths. The FSM resolution addresses his service in the U. S. Army Reserve and that he served with distinction in Operation Just Cause and the First Gulf War. 13. Counsel provided a complete copy of Docket Number AR20050015385, dated 19 July 2006, which denied the applicant's request to correct the FSM’s records to show he elected RCSBP spouse coverage, option C upon receipt of his Twenty Year Letter. 14. Counsel provided a copy of an ABCMR decisional document, which shows that the Board approved an applicant's request to have her spouse's record corrected to show that he enrolled in the RCSBP for immediate spouse coverage (Option C). DISCUSSION AND CONCLUSIONS: 1. The Counsel, in his request for reconsideration of AR20050015385, contends that the FSM did not receive notification as prescribed by law that he was eligible for retirement at age 60. Yet, the record shows the FSM requested voluntary transfer to the Retired Reserve and then was transferred to the Retired Reserve within 90 days of becoming eligible for retirement pay at age 60. 2. Counsel contends that the Board used the terminology "issued" to show the FSM was in receipt of his 20-year letter and that this term was used in error to support denying the applicant her request to show her spouse, the FSM, elected spouse coverage RCSBP (Option C). Counsel contends that the FSM was never notified as required by law; therefore, since the FSM was not officially notified, he could not make a RCSBP election. Counsel provided numerous sworn affidavits to support his characterization of the FSM as being a family man who would have honorably provided for his family had he been properly notified. 3. The applicant in a self-authored letter to ARPERCEN acknowledged that her spouse had received the 20-year letter and that she understood the 20-year letter stated if the Soldier did not elect coverage, then survivors would not be entitled to benefits. She states the RCSBP laws changed shortly after her spouse received his notification of eligibility to retire and that the new law should be applicable to her. 4. The Counsel provided the Board with a previous administrative decision, which found in favor of an applicant who requested that the record of her spouse, a FSM, be corrected to show that the FSM did elect RCSBP Option C. The Board, an administrative entity, does not establish precedent. Precedents are confined to legal rulings and do not apply to administrative decisions by the ABCMR that vary based on differing facts and equitable considerations. 5. In the applicant's letter to ARPERCEN, she acknowledged that her spouse had received his 20-year letter, and that he did not submit the DD Form 1883 to show he elected RCSBP coverage within the 90-day suspense as an oversight on his part. Therefore, the evidence of record does not support granting the applicant's request as she states she was aware he received the 20-year letter and then subsequently was transferred to the Retired Reserve within 90-days of retirement eligibility notification. Counsel tried to show that the FSM did not receive the 20-year letter and RCSBP notification packet as he stated the applicant handled all family correspondence and financial documents, yet the evidence does not support the Counsel's contentions. 6. Therefore, the ABCMR finds that the applicant did not show sufficient evidence to support granting her RCSBP, Option C, based on her own self-admission and on the fact that within 90-days of retirement eligibility the FSM was transferred by permanent order to the Retired Reserve upon his request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __LMD__ __JRM___ __JTM__ 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 AR20050015385, dated 19 July 2006. ___John T. Meixell __ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON YYYYMMDD DATE BOARDED YYYYMMDD TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.