IN THE CASE OF:	  

		BOARD DATE:	        15 JANUARY 2009

		DOCKET NUMBER:  AR20080009610 


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, the widow of a deceased former service member (FSM), requests that the FSM's military records be corrected to show that he elected immediate coverage (Option C) in the Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of receiving his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter).  It should be noted that her application contained the name of another individual as the service member, instead of her husband and a staff member of the board contacted the applicant in an attempt to resolve the discrepancy.  The applicant informed the staff member that someone else had completed the form incorrectly and that she did not know who the individual was who was listed as her husband.  She confirmed that her husband and the FSM's name was V____-R____, H____ M.

2.  The applicant essentially states that the FSM completed his military service and was retired from the Massachusetts Army National Guard on 29 June 1992 with over 20 years of qualifying service for non-regular retired pay at age 60.  She also states that the FSM passed away on 6 December 2006.  After she applied for benefits as a widow on 3 March 2008, the United States Army Human Resources Command in St. Louis, Missouri, sent her a letter explaining that there was no evidence that her late husband made an election in the RCSBP at the time of his transfer to the Retired Reserve in 1992, and that her request for an RCSBP annuity had to be denied.  She further states that she requested evidence from the FSM's unit, but found that no evidence existed that showed that the FSM made an election in the RCSBP at the time of his transfer to the Retired Reserve.  Additionally, she states, in effect, that if there is no evidence that the FSM elected to participate in the RCSBP at the time of his transfer to the Retired Reserve, he probably never received the guidance and assistance needed from his unit to make an RCSBP election, and that she should not be punished for this.

3.  The applicant provides an undated letter from a Soldier from the Massachusetts Army National Guard; a memorandum, dated 3 March 2008, from the Puerto Rico National Guard to the United States Army Human Resources Command, St. Louis, Missouri; a letter, dated 7 April 2008, from the Transition and Separations Branch, United States Army Human Resources Command, St. Louis; Missouri addressed to the applicant; a DD Form 2656-7 (Verification for Survivor Annuity), dated 22 February 2008; a DD Form 108 (Application for Retired Pay Benefits), dated 22 February 2008; a Standard Form 1199A (Direct Deposit Sign-Up Form), dated 25 February 2008; an Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 22 February 2008; the FSM's Certificate of Death; their Certificate of Marriage, dated 18 December 1972; the FSM's Certificate of Birth Registration; her Certificate of Birth; a copy of the FSM's social security card; a copy of her social security card; the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 17 March 1971; an Army National Guard Current Annual Statement, dated 30 November 1992; the FSM's 20-year letter, dated 13 November 1992, the FSM's NGB Form 22 (Report of Separation and Record of Service) that was issued at the time of his transfer to the Retired Reserve on 29 June 1992; orders, dated 13 November 1992, which transferred the FSM to the Retired Reserve effective 29 June 1992; and orders, dated 26 October 1989, which transferred the FSM to a unit in the Massachusetts Army National Guard on 17 September 1989 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that on 13 November 1992, he was issued his 20-year letter, which informed him that having completed the required years of service, he would be eligible for retired pay upon application at age 60.  Although this letter did not specifically mention the RCSBP, one of the enclosures to the FSM's 20-year letter was a Survivor Benefit Plan Summary, which essentially informed the FSM of his options under the RCSBP.  However, there is no evidence that the FSM made an RCSBP election within 90 days of receiving his notification of eligibility to receive retired pay at age 60, which meant that he had to wait until he applied for retired pay at age 60 to elect to participate in the standard SBP.

2.  The FSM died on 6 December 2006.  He would have reached age 60 on 9 November 2008.
3.  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 (and participate in SBP) 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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.   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 have waited until he/she applied for retired pay and elected to participate in the standard SBP.

6.  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.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the widow of a deceased FSM, contends that the FSM's military records should be corrected to show that he elected immediate coverage (Option C) in the RCSBP within 90 days of receiving his 20-year letter, contending that he never received guidance.

2.  The FSM failed to make an RCSBP election within 90 days of receiving his 20-year letter and a Survivor Benefit Plan Summary was enclosed with his 
20-year letter, indicating that some guidance would have been available to him had he required it.  However, the evidence indicates that the FSM did not seek guidance and did not make an RCSPB election.  Unfortunately, he then died prior to reaching age 60.  Regrettably, there is no basis for granting relief to the applicant in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  While the Board regrets that a more favorable response could not be accomplished, it wishes to extend its deepest condolences to the applicant on the passing of her late husband, and wants to thank the applicant for the sacrifices she made in service to the United States as a military spouse.



      _________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)                                         AR20080009610



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ABCMR Record of Proceedings (cont)                                         AR20080009610



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