RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 23 August 2007
DOCKET NUMBER: AR20070001823
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. Lester Echols
Chairperson
Mr. John T. Meixell
Member
Mr. Richard T. Dunbar
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 coverage.
2. The applicant states that it is unjust to deny her a survivor benefit. She was his wife for 31 years and feels she timely filed to the best of her ability.
3. The applicant provides copies of marriage and death certificates, correspondence between her and the United States Army Reserve Personnel Command and the Defense Finance and Accounting Service, and her application for SBP with enclosures.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 14 June 1947. After having had prior service, he enlisted in the United States Army Reserve on 1 January 1975. His 20-year letter is dated 3 December 1993.
2. On 1 August 1995, the FSM was transferred to the Retired Reserve.
3. The FSM died on 7 March 2000 at age 52.
4. On 11 April 2000, the Chief, Transition and Separations Branch, United States Army Reserve Personnel Command, 1 Reserve Way, St. Louis, Missouri, informed the applicant that the SBP packet was mailed to the FSM on
3 December 1993. However, the FSM failed to return the Department of the Army Form 1883 (Survivor Benefit Plan Election Certificate) within the 90 days as prescribed by law.
5. On 13 September 2006, the Survivor Benefit Analyst, Transition and Separations Branch, United States Army Reserve Personnel Command,
1 Reserve Way, St. Louis, Missouri, in response to the applicant, provided her a DD Form 2656-7 (Verification for Survivor Annuity) and directed her to complete and return the form with supporting enclosures.
6. On 13 November 2006, the Defense Finance and Accounting Service informed the applicant that because her application for SBP benefits was not received within the 6-year time limit for filing claims against the United States, her application was denied.
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 members 60th birthday; or (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.
8. Before the law was amended as noted below, a member must have made the election within 90 days of receiving the 20-year letter or else wait until he/she applied for retired pay and elected to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A.
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 RCSBP 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.
DISCUSSION AND CONCLUSIONS:
1. The FSMs 20-year letter was dated 3 December 1993. There is no evidence to show that the FSM elected to participate in the SBP.
2. Even if the FSM had made a valid election of option A (decline coverage) in a timely manner, the applicant was not entitled to nonconcur with the FSMs decision. The law allowing a spouse to nonconcur with a members ability to delay making an RCSBP election until age 60 was not enacted until October 2000 and was not retroactive.
3. Unfortunately, the subsequent communications between the applicant and both the Reserve Personnel Command and the Defense Finance and Accounting Service only tended to confuse and mislead the applicant into thinking that she had an entitlement to a survivor benefit annuity.
4. Regrettably, there is insufficient evidence which would warrant granting the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__LE ___ _RTD___ __JTM___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that 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.
___ Lester Echols_____
CHAIRPERSON
INDEX
CASE ID
AR
SUFFIX
RECON
DATE BOARDED
20070823
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
. . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
128.1800
2.
3.
4.
5.
6.
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