RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 20 March 2007
DOCKET NUMBER: AR20060008972
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.
Mr. Gerard W. Schwartz
Acting Director
Mr. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Ms. Kathleen A. Newman
Chairperson
Mr. David K. Hassenritter
Member
Ms. Laverne M. Douglas
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:
1. The 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) based on the proof of the FSM's
24 years of military service.
2. The applicant states, in effect, that the FSM proudly served in the Tennessee Army National Guard (TNARNG) until his retirement in April 1995. The applicant further states that the FSM was killed in a helicopter crash on 24 June 2004. She states that after the funeral she began to search for benefit information regarding military widows. She requested the FSM's military records and learned that his records did not contain a DD Form 1883 (Survivor Benefit Plan Election Certificate) and that she was not entitled to survivor benefits because of the missing document.
3. The applicant remembers the FSM stating the afternoon he returned from submitting his retirement paperwork "Well, if anything ever happens to me, you will be taken care of." The applicant continues that for the last two years she has attempted to resolve her dilemma with no success.
4. The applicant provided a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 10 February 1973; a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with the period ending 23 July 1995; a TNARNG memorandum of Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), date stamped 28 April 1995; a State of Tennessee Marriage Certificate, dated 13 June 1996; a Certificate of Death/State of Louisiana, dated 26 July 2004; a Certificate of Live Birth/State of Washington, dated 29 May 1953; and six photographs of the FSM.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 15 May 1953. He had prior service in the Regular Army and the U.S. Army Reserve. He enlisted in the TNARNG on 25 February 1980.
2. A SGLV Form 8286 (Servicemen's Group Life Insurance Election and Certificate), dated 6 December 1992, shows that at that time the FSM was married to P______.
3. The FSM's 20-Year Letter is date stamped 28 April 1995. There is no evidence the FSM enrolled in RCSBP at this time.
4. On 23 July 1995, the FSM was discharged from the TNARNG and transferred to the U.S. Army Reserve Control Group (Retired).
5. The FSM and the applicant married on 13 June 1996. He died on 24 June 2004 at the age of 51.
6. 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. 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 applied for retired pay and then elect to participate in the standard SBP. In other words, failure to elect an option within the 90 days resulted in the default election of option A.
7. 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 one year after the date on which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not show the FSM elected to participate in the RCSBP at the time he received his 20-Year Letter. It is not clear what his marital status was at that time. If he was married and failed to enroll in the RCSBP for spouse coverage, he was barred from enrolling for spouse coverage until he turned age 60 (or during an open season).
2. If the FSM was not married at the time he received his 20-Year Letter and he married the applicant on 13 June 1996, he was eligible to enroll in the RCSBP within one year of the marriage date. However, there is no evidence to show the FSM elected to do so. His next opportunity to enroll in the SBP was when he turned age 60. Unfortunately, he died before turning age 60.
3. In the absence of substantiating evidence to show the FSM attempted to enroll in the SBP, it does not appear that failure to grant the applicant's requested relief would be inequitable.
4. Regrettably, in view of the foregoing there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__KAN __ __DKH _ __LMD__ 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.
____ Kathleen A. Newman _
CHAIRPERSON
INDEX
CASE ID
AR20060008972
SUFFIX
RECON
DATE BOARDED
20 MARCH 2007
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES 1.
137.0100.0000
2.
3.
4.
5.
6.
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