IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080002995


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, entitlement to the 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 she was denied the benefit because she waited too long after her husband's death to apply.

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Undated self-authored statement.

	b.  Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, letter, dated 10 January 2008, denial of RCSBP benefits.

	c.  The FSM's Certificate of Death, dated 23 February 2001.

	d.  Marriage License, dated 13 December 1969.

	e.  The FSM's Honorable Discharge Certificate, dated 9 October 1996. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's records show that he was born on 26 February 1947 and enlisted in the Regular Army for a period of 3 years on 15 February 1965.  He was honorably released from active duty and was transferred to the U.S. Army Reserve (USAR) on 14 February 1968.

3.  The FSM's records further show that he was married on 13 December 1969, and after a break-in-service, he enlisted in the USAR on 15 February 1976.  He subsequently had a series of extensions and/or reenlistments in the USAR.

4.  On 24 September 1993, the US Army Reserve Personnel Center issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter, in effect, 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 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 1993.

6.  Headquarters, 70th Division (Institutional Training), Livonia, Michigan, Orders 81-010, dated 22 March 1995, show that the FSM was released from his current assignment and assigned to the Retired Reserve effective 22 March 1995. 

7.  On 23 February 2001, the FSM died at the age of 53.

8.  On 10 January 2008, DFAS-Cleveland, Ohio, notified the applicant that her application for the RCSBP annuity was denied because it was not received within 6 years of the FSM's death.  

9.  In her self-authored statement, the applicant states that she was unaware of the 6-year requirement to apply for the RCSBP annuity.  She further adds that she did not receive any information or direction from the FSM's USAR unit.

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.  Section 655 of 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 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.  The DFAS letter denying benefits based on the applicant's failure to timely file was in error.  The applicant is not entitled to benefits because her husband failed to enroll in the RCSBP.



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 did not submit evidence that would satisfy this requirement in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080005955



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20080002995



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508