RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070003936 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. Heflin

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, entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her deceased spouse, a former service member (FSM).

2.  The applicant states, in effect, that the FSM did not accept or decline the benefit and that the FSM told his spouse and children that the benefit was taken care of.

3.  The applicant provides a copy of Retirement Plan Selection for the Employees Retirement System of Texas and a copy of the FSM's Certificate of Death in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he was born on 16 August 1934.  He enlisted in the Regular Army on 31 August 1950 for a period of 3 years, extended his initial contract by 1 year on 1 August 1952, and was honorably separated on 10 August 1954.  The FSM reenlisted in the Regular Army on 29 October 1954 for a period of 6 years and was honorably discharged for the purpose of reenlistment on 28 October 1960.  The FSM reenlisted in the Regular Army on 29 October 1960 for a period of 6 years and was honorably discharged on 28 October 1966. 

2.  The FSM's records further show that on 3 August 1978, he enlisted in the Texas Army National Guard (TXARNG) for a period of 6 years.  Records further show on 19 December 1984, the FSM reenlisted in the U.S. Army Reserve (USAR) for a period of 6 years. 

3.  On 22 June 1989, the US Army Reserve Personnel Center issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  This letter also notified the FSM that he was entitled to participate in the RCSBP and that "UPON RECEIPT OF NOTIFICATION OF ELIGIBILITY FOR RETIRED PAY AT AGE 60, HE HAD 90 DAYS IN WHICH TO ELECT TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN OR REMAIN UNCOVERED BY THE PLAN UNTIL HE BECAME 60 YEARS OLD AND AGAIN AFFORDED THE OPPORTUNITY."



4.  There is no evidence in the FSM's records that he made an election for the RCSBP during the 90-day window.  

5.  On 15 August 1994, the FSM completed the DD Form 2656 (Data for Payment of Retired Personnel) indicating in item 28g that he elected not to participate in the SBP.  His spouse concurred with his decision by placing her signature in Item 35 (Signature of Spouse) of the DD Form 2656.

6.  Headquarters, U.S. Army Reserve Personnel Center, Saint Louis, Missouri, Permanent Orders Number P-10-405712, dated 14 October 1994 show that the FSM was placed on the retired list effective 16 August 1994, on his 60th birthday.

7.  On 24 October 1994, the FSM was sent a letter from the U.S. Army Reserve Personnel Center, Saint Louis, Missouri, informing him that his application for retired pay was approved. 

8.  On 25 October 2005, the FSM died at the age of 71.

9.  The State of Texas Retirement Plan Selection submitted by the applicant shows that on 31 July 1999, the FSM elected a retirement option that would pay a reduced annuity to his beneficiary upon his death.  The FSM's spouse concurred with this election. 

10.  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.  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 elected to participate in the standard SBP.

11.  Title 10 of the United States Code, section 11452(a)(1)(B), provides the legal authority for reduction in retired pay for RCSBP participants.  It states, in pertinent part, that in the case of a participant in the RCSBP who provided coverage for an eligible beneficiary during a period before becoming entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive SBP benefits based on the death of her former husband, a FSM, was carefully considered.  However, there is insufficient evidence to support this claim

2.  The FSM's State retirement plan, options, or beneficiary selection have no bearing on the FSM's SBP election.  Each plan is covered by its own rules.  

3.  The evidence of record confirms that upon retirement in August 1994, the FSM elected "Not to participate in the SBP", as evidenced by the DD Form 2656 he completed at that time.  This election was irrevocable, except under specific circumstances identified by law that are not applicable in this case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEV___  __RDG___  __RCH___  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.




							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003936
SUFFIX

RECON

DATE BOARDED
20070919
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
137.0100
2.

3.

4.

5.

6.