BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150008463 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, in effect, correction of his records to show he enrolled in the Reserve Component (RC) Survivor Benefit Plan (SBP) with Option C (Immediate) coverage for a natural person with an insurable interest. 2. The applicant states that his doctors have told him he is dying from an infection called Osteomyelitis because his kidneys are shutting down. He states that he served in the U.S. Army for 25 years. On 23 May 2006, he asked that his retired pay be deferred until age 60. Now, due to his medical condition, he requests immediate payment of his retired pay and that it be payed to his brother (M-- P-- B----) because his brother has taken care of him for the past five years. 3. The applicant provides copies of – * two DD Forms 214 (Certificates of Release or Discharge from Active Duty) * his Twenty Year Letter * two DD Forms 2656-5 (RCSBP Election Certificates) * his medical records * a letter to the U.S. Army Human Resource Command (HRC) * two letters of support from family members CONSIDERATION OF EVIDENCE: 1. The applicant was born on 21 October 1963. He enlisted in the U.S. Army Reserve (USAR) on 16 December 1983. a. A DD Form 214 shows he enlisted in the Regular Army on 28 March 1984 and he was honorably separated from active duty on 8 March 2001. b. He was transferred to a USAR on 9 March 2001. c. A DD Form 214 shows he was ordered to active duty on 10 March 2003 and honorably separated on 21 March 2004. d. He attained the rank of staff sergeant/pay grade E-6 on 21 May 2003. 2. On 13 April 2006, the Deputy Director, Personnel Actions and Services, HRC, St. Louis, MO, notified the applicant that he had completed the required years of qualifying Reserve service and he was eligible for retired pay upon application at age 60 (Twenty Year Letter). He was also notified of his entitlement to participate in the RCSBP established by Public Law 95-397. The letter shows he was advised that RCSBP was the sole means of protecting his retired pay entitlement and that he must submit a DD Form 2656-5 within 90 days of the date of the letter. The letter offered detailed information concerning participation in the RCSBP and an SBP booklet was enclosed to assist with his decision. 3. A DD Form 2656-5 completed by the applicant on 23 May 2006 shows in: * Section II (Marital/Dependency Status) – * item 7 (Are You Married?), "X" in the "NO" block * item 8 (Do You Have Any Dependent Children?), "X" in the "NO" block * Section IV (Coverage) – * item 12 (Options), an "X" in the block for "Option A. I decline to make an election until age 60. (Note: Do not select type of coverage below.)" * item 13 (Type of Coverage) is blank (i.e., no "X" or checkmark in any block (e.g., "Natural Person with an Insurable Interest") * Section VII (Insurable Interest Coverage) is blank (i.e., no entries) * Section VIII (Remarks), item 17 (Use this section to continue an item or make additional comments), the entry, "I DO NOT WISH TO HAVE ANY COVERAGE." JEB [applicant's initials] * Section IX (Member Signature – The Member's Signature Must Be Witnessed), the applicant and a witness signed the form on 23 May 2006 4. The applicant was transferred to the USAR Control Group (Retired Reserve) on 17 December 2006. 5. A review of the applicant's military personnel records shows the applicant's marital status was consistently recorded as "Single." 6. In support of his application the applicant provides the following additional documents. a. Veterans Administration Medical Center, Ann Arbor, MI, medical records, dated 20–22 October 2014, that show, in pertinent part, the applicant's renal function is mildly impaired, his infectious medical condition is not curable and likely to limit his life, and that he is receiving palliative [comfort] care. b. A letter written by the applicant to HRC, dated 1 November 2014, and DD Form 2656-5 that show he requested RCSBP, Option C (Immediate Annuity) coverage for a natural person with an insurable interest (i.e., his brother, M-- P-- B----) based on full retired pay. He also requested that all previous RCSBP applications be voided. The applicant and a witness signed the DD Form 2656-5 on 10 November 2014. c. A letter written by the applicant's brother (M-- P-- B----) on 21 April 2015. That states he has been taking care of the applicant since 2011 and his health has continued to decline since then. (1) He notes that the family has been trying to obtain (without success) Army records pertaining to a motor vehicle accident that involved a drunk driver and a bus in which the applicant and 18 other Solders were traveling while the applicant was serving in Germany. (2) He adds, in effect, that the applicant wants his entitlement to retired pay to be honored by the Army by way of an RCSBP annuity to him (his brother). d. A letter written by the applicant's brother's spouse (J-- B----) on 21 April 2015. She describes the applicant's medical conditions and procedures since the end of 2010. She states that she and her husband have been taking care of the applicant since 2011 and the applicant’s health has continued to decline since then. (1) She also notes that the family has been trying to obtain (without success) Army records pertaining to a motor vehicle accident that involved a drunk driver and a bus in which the applicant and 18 other Solders were traveling while the applicant was serving in Germany. (2) She adds, in effect, that the applicant wants his entitlement to retired pay to be honored by the Army by way of an RCSBP annuity to his brother. 7. 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. Retiring members and spouses were to be informed of the SBP options and effects. 8. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies 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 the service member's death if before age 60. At the time, a member must have made 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. Failure to elect an option resulted in the default election of Option A. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that his records should be corrected to show he elected the RCSBP with Option C (Immediate) coverage for a natural person with an insurable interest (i.e., his brother) based on full retired pay because he is terminally ill and desires to have his entitlement to military retired pay honored. 2. On 13 April 2006, the applicant was notified he had completed 20 years of creditable service for retired pay at age 60. At that time, he was also informed of his entitlement to participate in the RCSBP. 3. On 23 May 2006, he completed a DD Form 2656-5 and indicated that he declined to make an SBP election until age 60. The applicant and a witness signed the form. 4. On 17 December 2006, he transferred to the USAR Control Group (Retired Reserve). 5. The applicant is currently 52 years of age, single, and receiving palliative care for his medical conditions. 6. The evidence of record shows the applicant does not currently have RCSBP coverage because he declined to make an SBP election until age 60. 7. Regrettably, based on the evidence of record, the applicant is not entitled to the 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) AR20150008463 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008463 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1