RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060011215 


	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. Carl W. S. Chun

Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Thomas Ray

Chairperson

Mr. Jeffrey Redmann

Member

Mr. James Hastie

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 elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage.

2.  The applicant states that they (the FSM and herself) were not counseled on survivor benefits by the State and that she knows the FSM never received the paperwork from his unit directing him to make a selection of benefits for his retirement.  She contends that she never saw the paperwork and that she did not sign or consent to the terms of “option A” [decline enrollment] as outlined by the U.S. Army Human Resources Command policy on its website. 

3.  The applicant provides three DD Forms 149 (Application for Correction of Military Record); a memorandum, dated 14 March 2006; a Marriage Certificate; a Death Certificate; a Report of Casualty; a memorandum, dated 24 January 2007; the FSM’s 20-year letter, dated 24 December 1996; documentation pertaining to the RCSBP coverage and costs; and two letters, dated 30 August 2006 and 
7 August 2006, from a Member of Congress.  

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 29 March 1948.  He enlisted in the Army National Guard on 9 May 1966.  He was ordered to active duty on 5 January 1967 for training and released from active duty on 22 May 1967.  He married the applicant on 1 August 1986.  

2.  The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 24 December 1996.  Paragraph 3 of this letter pertains to the RCSBP and DD Form 1883 (Survivor Benefit Plan Election Certificate) and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883.  Questions pertaining to his retirement or the RCSBP were to be directed to Sergeant First Class S_____.  Records at the U.S. Army Human Resources Command - St. Louis indicate that the FSM's records did not contain a DD Form 1883.  

3.  The FSM was promoted to staff sergeant on 1 September 1998.  

4.  The FSM died on 9 March 2006 while serving in the Army National Guard.  



5.  In support of her claim, the applicant provided a memorandum, dated 
14 March 2006, from the Deputy Chief of Staff, Personnel, Joint Force Headquarters, Oregon National Guard in Salem, Oregon.  This letter states that the FSM received his 20-year letter on 22 June 1997 and that he did not make a selection for the SBP (DD Form 1883) because the FSM and his spouse were not counseled on their SBP options.  He states the counseling did not take place due to a gross oversight by supervisors and the benefit coordinator.  The applicant also provided a memorandum of support, dated 24 January 2007, from the Deputy G-1, Joint Force Headquarters, Oregon National Guard in Salem, Oregon.

6.  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.  

7.  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.  Before the law was amended in October 2000, 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.  In other words, failure to elect an option resulted in the default election of option A, decline enrollment and choose at age 60 whether to start SBP participation.

8.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  Extensive publicity was given in various Army publications.  

9.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an SBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C. 

10.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005 to 30 September 2006.  It requires that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  
DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that the FSM never received the paperwork from his unit directing him to make a selection of benefits for his retirement, the 14 March 2006 memorandum she provided from the Deputy Chief of Staff states that the FSM received his 20-year letter on 22 June 1997.  The 20-year letter informed him to direct any questions he had concerning his retirement and/or the RCSBP to Sergeant First Class S___.  There is insufficient evidence to show he was prevented from asking Sergeant First Class S___ any questions. 

2.  There is no evidence to show the FSM ever attempted to enroll in the RCSBP at any time.  There is also no evidence to show he attempted to enroll during the March 1999 to February 2000 Open Season or the 2005/2006 (prior to his death) Open Season.  

3.  The applicant’s contention that she did not consent to the terms of option A was noted.  However, the law states that for service members who were issued 20-year letters prior to 1 January 2001, failure to elect an SBP option resulted in the default election of option A (decline enrollment and choose at age 60 whether to start SBP participation).  The FSM received his 20-year letter in June 1997.  Spousal consent was also not required in cases like the FSM’s when the 20-year letter was issued prior to 1 January 2001.  

4.  Regrettably, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

TR_____  __JR___  __JH____  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.


___Thomas Ray_________
          CHAIRPERSON




INDEX

CASE ID
AR20060011215
SUFFIX

RECON

DATE BOARDED
20070301
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.