APPLICANT REQUESTS: Correction of the military records of her late spouse, the former service member (FSM) to show that he elected SBP (Survivor Benefit Plan) participation for his spouse.
APPLICANT STATES: In effect, that her husband the FSM completed and mailed the election forms on 7 November 1992. Her husband died on 14 September 1994.
EVIDENCE OF RECORD: The FSMs military records show:
FSM was born on 22 February 1945. He was a member of the Army Reserve. He married the applicant on 24 May 1986.
On 20 December 1991, U.S. Army Reserve Personnel Center (ARPERCEN) sent a packet of notification of eligibility for retired pay at age 60. The packet contained material for the applicant to elect into the Reserve Component Survivor Benefit Plan within 90 days. On 27 December 1991, ARPERCEN received a certified receipt acknowledging that the FSM had received the RC-SBP packet.
On 23 April 1992, the FSM and his wife were informed that they had failed to submit the DD Form 1883 (SBP election) within the 90 day time period. Therefore, he was ineligible for the SBP until he reached age 60.
On 7 November 1992, 10 months and 11 day after initial receipt of RC-SBP packet, the FSM filed an Open Enrollment Election Certificate. On 14 December 1992, ARPERCEN acknowledged receipt of the enrollment certificate. This was a valid election.
On 14 September 1994, the FSM died at the age of 49.
Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the SBP to members and former members of the Reserve Components who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.
Public Law 97-35, effective 13 August 1981, provided for an open enrollment season which permitted members, eligible for retired pay, to elect to participate in the SBP during an open enrollment season. However, if the service member died within 2 years following an election made during this open season, the election became void. In that case, the SBP costs deducted from the member's retired pay were to be refunded to the beneficiary named in the SBP election. Eligible retirees were furnished forms and instructions in order to enroll if they desired. A second RC-SBP open enrollment season was authorized during the period 1 April 1992 to 31 March 1993.
Title 10, United States Code, Chapter 73, and Army Regulation 135-180 provide that, if an election is not filed during the initial 90 day period following notification, the member may not elect to participate in the RC-SBP until he attains age 60 and applies for retired pay.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from ARPERCEN which advised, in effect, that the applicants request be denied.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence which would satisfy the aforementioned requirement.
2. The evidence of record shows that the FSM was mailed an RC-SBP packet on 20 December 1991. He acknowledged receipt of packet on 27 December 1991. However, the FSM failed to submitted the necessary paperwork within the 90 day time period specified by law.
3. Instead, the FSM submitted for the SBP during another open enrollment period on 7 November 1992. This was a valid submission. Unfortunately, he died on 14 September 1994, less than 2 years after submission. Therefore by operation of law, his election of the SBP on 7 November 1992 became void.
4. In view of the foregoing, there exists no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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