IN THE CASE OF:
BOARD DATE: 16 October 2008
DOCKET NUMBER: AR20080011761
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 show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
2. The applicant states, in effect, that her FSM did not complete the application to make an election for RCSBP coverage within 90 days of receiving the notification of eligibility to receive retired pay at age 60.
3. The applicant provides a Certificate of Death, dated 16 January 2008, a Department of Veterans Affairs (DVA) Rating Decision, dated 10 November 2007, a letter from the U.S. Army Human Resources Command (USAHRC), dated 18 April 2008, and notification of eligibility for retired pay at age 60 (known as a 20-year letter).
CONSIDERATION OF EVIDENCE:
1. The FSM was inducted into the Army of the United States on 17 February 1969. He served in the military occupational specialty (MOS) 12B (Combat Engineer) in various assignments until he was released from active duty and transferred to U.S. Army Reserve (USAR) Control Group (Annual Training), St. Louis, Missouri, on 11 December 1970. He had completed 1 year, 9 months, and 25 Days of Total Active Service. His date of birth is 24 August 1948.
2. The FSM reenlisted into the USAR on 5 February 1977 and served continuously until he was transferred to the USAR Control Group (Reinforcement) on 15 October 1997.
3. The FSM's 20-year letter is dated 28 May 1992.
4. The FSM's military personnel record does not contain a copy of a DD Form 1883 (Survivor Benefit Plan Election Certificate) and DD Form 2656 (Survivor Benefit Plan Election Change Certificate) that would have shown he elected RCSBP coverage for his spouse.
5. The FSM died on 16 December 2007 at age 59.
6. The letter from USAHRC states that a Survivor Benefit Plan (SBP) packet was mailed to the FSM and he failed to return the DD Form 1883 within 90 days as prescribed by law.
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. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay. Before the law was amended as noted below, 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 applies for retired pay and elect to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A.
8. 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 requests that the FSM's record be corrected to show he elected to participate in the RCSBP for spouse coverage.
2. The Open Season for enrollment conducted from 1 March 1999 to
29 February 2000 was extensively covered in issues of Army Echoes. The applicant had the opportunity to enroll in the SBP during this Open Season. Upon receiving the 20-year letter the FSM failed to make an election to participate in RCSBP for spouse coverage. As such, no RCSBP coverage was provided.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20080011761
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ABCMR Record of Proceedings (cont) AR20080011761
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