| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Ms. JoAnn H. Langston | Chairperson | ||
| Ms. Melinda M. Darby | Member | ||
| Mr. Ronald E. Blakely | Member |
APPLICANT REQUESTS: In effect, 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).
APPLICANT STATES: That she was never informed of this program prior to the FSM's retirement from the Army National Guard nor before his death in July 1993. Lack of retirement counseling hindered their knowledge of this program; therefore, she was never given the opportunity to elect an option. Supporting evidence is as listed on the 12 July 2002 letter from the Ohio Army National Guard accompanying her application.
COUNSEL CONTENDS: Counsel makes no additional comment.
EVIDENCE OF RECORD: The FSM's military records are not available. Information contained herein was obtained from alternate sources.
The FSM was born on 27 August 1941. He and the applicant married on 6 March 1967.
The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 16 April 1980. The letter says a Survivor Benefit Plan Summary was attached. He apparently did not complete a Survivor Benefit Plan Election Certificate, DD Form 1883, at that time. He apparently was discharged from the Army National Guard in 1989 in the rank of Chief Warrant Officer Three.
The FSM died on 6 July 1993 at age 51 of an acute myocardial infarction as a consequence of chronic obstructive pulmonary disease from which he had suffered for 10 years.
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.
Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 through 30 September 1982. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.
Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. Extensive publicity of this Open Season was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. (Army Echoes was mailed to gray area retirees (those eligible for retired pay but not yet age 60) beginning sometime in the 1980s.) Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.
Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters were made after 1 January 2001.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The FSM had an opportunity to enroll in the RCSBP when he received his 20-year letter. It appears that he did not take that opportunity. While the RCSBP is meant to provide protection to a member's family, at the time the decision to enroll or not was the member's, not the spouse's. The law which required spousal concurrence with a decision to delay making an SBP election until reaching age 60 was not enacted until 30 October 2000.
2. The FSM had a second opportunity to enroll in the RCSBP during the 1981 through 1982 Open Season. There is no evidence to show that he attempted to enroll during that period. It appears he was still active in the Army National Guard at this time and should have been aware of the Open Season.
3. The FSM had a third opportunity to enroll in the RCSBP during the 1992 through 1993 Open Season. By this time, Army Echoes was being mailed to gray area retirees. It contained extensive publicity on this Open Season. Although this Open Season required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity, had the FSM attempted to enroll during this period it would have been evidence of his intent to do so. However, there is no evidence that he attempted to enroll at that time.
4. Regrettably, in view of the foregoing there is no basis for granting the applicant's 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
__JHL__ __MMD__ ___REB__ DENY APPLICATION
| CASE ID | AR2002077015 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/09/19 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.04 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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