IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080000967 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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 reflect her entitlement to a Reserve Component Survivor Benefit Plan (RCSBP) annuity. 

2.  The applicant states, in effect, that her spouse, the FSM, initially declined RCSBP coverage upon his separation from the Army in 1997.  However, during the RCSBP open season he completed a Data for Payment of Retired Personnel (DD Form 2656), in which he elected "Spouse Only" coverage based on full gross pay without supplemental SBP.

3.  The applicant provides the following documents in support of her application:  DD Form 2656; Certificate of Death; United States Army Reserve Personnel Center Letters, dated 9 December 1997 and 13 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was appointed a second lieutenant in the United States Army Reserve (USAR) on 21 August 1970.  He continuously served in various Reserve Component (RC) statuses until 11 December 1998, at which time he was transferred to the Retired Reserve.

2.  The applicant and FSM were married on 6 May 1968.

3.  On 6 August 1997, Army Reserve Personnel and Administration Center (ARPERCEN) issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), which informed him he had completed the required years of service necessary to qualify to receive retired pay at age 60 upon application.  

4.  On 9 December 1997, the FSM completed a Survivor Benefit Plan Election Certificate (DD Form 1883).  In Section II (Marital, Dependency, and Election Status) of this document, he elected Option A (Deferred), in effect delaying his final SBP enrollment election until he applied for retired pay at age 60.  

5.  On 9 December 1997, an ARPERCEN letter informed the applicant of the FSM's election to decline immediate participation in the RCSBP and of his election to defer his final SBP election until applying for retired pay at age 60.  This letter further informed her that based on the FSM's election not to immediately participate, she would be ineligible for a monthly annuity in the event of his death prior to his sixtieth birthday.  It also notified her that the FSM would be given another opportunity to participate in standard SBP when he applied for retired pay.  

6.  On 16 March 2006, during a RCSBP open season, the FSM completed a Data for Payment of Retired Personnel (DD Form 2656), in which he elected “Spouse Only” SBP coverage at the full gross pay without supplemental SBP.  

7.  On 28 May 2006, the FSM died at the age of 58.  The death certificate shows he was married to the applicant at the time.

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.  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 RCSBP 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.  If death does not occur before age 60, the RCSBP costs for options B and
C are deducted from the member's retired pay.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable, except as provided for by law.  Option B and C participants do not make a new SBP election at age 60.  
9.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her spouse, the FSM, elected RCSBP coverage during an open season and she is therefore entitled to RCSBP was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the FSM completed a DD Form 1883 on 
9 December 1997, in which he elected to decline immediate RCSBP coverage, and elected to instead defer his election until age 60 under Option A (Defer).  It also shows that on 16 March 2006, during an SBP Open Season, the FSM submitted a DD Form 2656 electing immediate “Spouse Only” SBP coverage.  

3.  By law, in order to be eligible to receive an SBP annuity based on an Open Season election, a member must live two years from the effective date of election.  In this case, the FSM died on 28 May 2006, less than three months after he submitted the DD Form 2656 during the Open Season.  As a result, given the statutory requirements for his Open Season election had not been met, the applicant is not entitled to receive SBP annuity payments as a result of this election.  Absent any evidence of an error or injustice related to the FSM's SBP elections of 1997 and 2006, there is an insufficient evidentiary basis, and it would not be appropriate or serve the interest of all those who elected to defer RCSBP coverage and who faced similar circumstances, to support granting the requested relief.   

4.  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

___x____  ___x ____  ___x____  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.




       _    __x_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000967



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ABCMR Record of Proceedings (cont)                                         AR20080000967



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