RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 May 2008
DOCKET NUMBER: AR20070017063
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 military records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage and that she be paid the SBP annuity.
2. The applicant states that the Iowa Army National Guard Records Center could not find evidence that the FSM had enrolled in the SBP when he had completed 20 years of service. She states that there is also no record on file at the Army Human Resources Command. The applicant also states that the Iowa Army National Guard could not find evidence that the FSM was ever provided the opportunity to enroll in the SBP or that he received the forms to complete.
3. The applicant provides a copy of her and the FSMs marriage certificate; the FSMs death certificate; the FSMs discharge orders from the Army National Guard; the FSMs NGB Form 22 (Report of Separation and Record of Service) for the period ending 1 July 2001; a DD Form 2656-7 (Verification for Survivor Annuity); a 2007 W-4P (Withholding Certificate for Pension or Annuity Payments); a Standard Form 1199A (Direct Deposit Sign-Up Form); and the FSMs Army National Guard Retirement Points History Statement - Application for Retirement Pay.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 23 March 1950. He was promoted to staff sergeant on 7 December 1981.
2. The FSM married the applicant on 22 January 1988.
3. After having had prior service in the Regular Army and the Air National Guard, the applicant enlisted in the Iowa Army National Guard on 3 May 1991.
4. The FSM's notification of eligibility to receive retired pay at age 60 (20-Year Letter) is dated 22 May 1997. His 20-Year Letter indicates that an SBP Summary was enclosed. There is no evidence of record which indicates the FSM submitted an SBP Election Certificate (DD Form 1883) within 90-days of receipt of his 20-Year Letter.
5. In a 9 September 1997 letter from the Iowa Army National Guard, the FSM was informed through his unit that his unit was sent a packet of information and several blank forms concerning the SBP election. This letter informed the
applicant that the SBP election forms were not completed and submitted within 90 days after he received his 20-Year Letter and that he had forfeited the opportunity to elect coverage prior to age 60. He was also notified that he remained eligible to elect coverage upon reaching his 60th birthday.
6. The FSM was discharged from the Army National Guard on 1 July 2001 and was transferred to the Retired Reserve.
7. The FSM died on 28 March 2007. His death certificate shows he was married to the applicant at the time of his death.
8. 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.
9. 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 does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay. A member must make 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.
10. 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 is dated 22 May 1997. This letter informed him an SBP packet was attached. He was married to the applicant at that time; however, there is no evidence which indicates he elected SBP for spouse coverage. The applicant provided no evidence to show the FSM never received his 20-Year Letter, a document most Reservists look forward to receiving.
2. The evidence of record shows the FSM was notified by letter in September 1997 that he had not completed and submitted the SBP election forms within
90-days of receipt of his 20-Year Letter.
3. The FSM died on 28 March 2007, two years prior to him reaching age 60.
4. There is no record which indicates the FSM ever enrolled in the SBP for spouse coverage. Regrettably, there is no basis on which to grant the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
xx______ xx______ xx______ 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.
_______xxxx________
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20070017063
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA 22202-4508
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