RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 14 August 2007
DOCKET NUMBER: AR20070004219
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. Michael J. Flynn
Chairperson
Mr. Larry W. Racster
Member
Mr. Donald W. Steenfott
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 husband, a former service member (FSM).
2. The applicant states that her spouse completed the required years of service, points, and credits for retirement and thus became eligible for the RCSBP. The applicant cites Title 10, United States Code, Chapter 67 as the grounds for submitting this application.
3. The applicant provides a copy of the Medical Certificate of Death and a copy of the Army Reserve Personnel Command Chronological Statement of Retirement Benefits, dated 23 January 2007 in support of her application:
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 25 June 1995. The application submitted in this case is dated 12 March 2007.
2. Records show that the FSM was born on 11 April 1946 and that he enlisted in the Regular Army on 22 January 1968 for a period of 3 years. Records further show that the FSM was honorably released from active duty and transferred to the United States Army Reserve (USAR) Control Group on 10 January 1971.
3. After an excess of 5 year break in service, the FSM enlisted and served in the USAR during the period 26 June 1976 through 26 June 1994, completing a total of 21 years, 4 months, and 20 days of qualifying service for non-regular retirement.
4. On 4 February 1994, 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 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 AND AGAIN AFFORDED THE OPPORTUNITY."
5. There is no evidence in the FSM's records which shows that he elected to participate in the RCSBP during his 90-day window of opportunity in 1994.
6. On 27 July 1998, the FSM died at the age of 52.
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; (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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she is entitled to receive RCSBP benefits based on the death of her husband, a FSM, was carefully considered. However, there is insufficient evidence to support this claim.
2. By law and regulation, members must elect to participate in the RCSBP Plan. The FSM was notified that he was required to elect participation in the RCSBP within 90 days of receipt of his twenty-year letter. The FSM's records do not indicate that he elected to participate in the RCSBP and the applicant has not provided sufficient evidence showing that he elected to participate in the RCSBP. Therefore, there is no basis to grant the applicant's request for RCSBP benefits.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__mjf___ __lwr___ __dws___ 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.
Michael J. Flynn
______________________
CHAIRPERSON
INDEX
CASE ID
AR20070004219
SUFFIX
RECON
DATE BOARDED
20070814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
(DENY)
REVIEW AUTHORITY
ISSUES 1.
137.0100
2.
3.
4.
5.
6.
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