IN THE CASE OF:
BOARD DATE: 18 December 2008
DOCKET NUMBER: AR20080012773
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 military records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage and that she be paid the RCSBP annuity.
2. The applicant states that she was married to the FSM for 36 years and he gave over 20 years of his life to his country with pride. The applicant states that the FSM was not aware that he had not signed anything for her to get RCSBP at his death.
3. The applicant provides a letter from the Alabama Retired Activities Branch, Alabama Army National Guard, dated 20 June 2008; the FSM's National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), dated 20 June 2008; the FSM's NGB Form 22 (Report of Separation and Record of Service); the FSM's DD Form 214 (Report of Separation from Active Duty) for the period ending 13 August 1975; the FSM's death certificate; and a copy of her and the FSM's marriage license.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 2 May 1951. He and the applicant were married in June 1970.
2. After having prior active and inactive service in the U.S. Air Force, the FSM enlisted in the Army National Guard on 17 May 1980.
3. The FSM's notification of eligibility for retired pay at age 60 (20-Year Letter) is not available. His Army National Guard Retirement Points History Statement shows he was issued a notice of eligibility. He completed 20 years of qualifying service around May 1996.
4. The FSM was discharged from the Army National Guard on 16 May 1996 and transferred to the Retired Reserve on the following date.
5. The FSM died on 20 August 2006. The death certificate shows he was married to the applicant at the time of his death.
6. In a 20 June 2008 letter, the Alabama Army National Guard informed the applicant that there was no Survivor Benefit Plan Election Certification (DD Form 1883) on file in the Alabama Retired Activities Branch or in St. Louis, Missouri. Their records did contain a copy of the FSM's NGB Form 22 and NGB Form 23b which shows he had over 20 years of qualifying service for retirement.
7. The FSMs NGB Form 23B shows he completed 20 years and 4 months of qualifying service for retired pay at age 60.
8. 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 occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. 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. In other words, failure to elect an option resulted in the default election of option A.
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.
10. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 29 February 2000. Extensive publicity was given in Army Echoes.
11. The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005 through 30 September 2006. Extensive publicity was given in Army Echoes.
DISCUSSION AND CONCLUSIONS:
1. The FSM's NGB Form 23B indicates the FSM received his 20-Year Letter. However, it appears he never made an RCSBP election which resulted in deferring his election until age 60.
2. The evidence of record shows the applicant was notified by letter in June 2008 and that the FSM had no Survivor Benefit Plan Election Certification (DD Form 1883) on file in the Alabama Retired Activities or in St. Louis, Missouri. There is also no evidence that he attempted to enroll during an SBP Open Season.
3. The FSM died on 20 August 2006, prior to him reaching age 60.
4. Regrettably, there is no basis on which to grant the applicants 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.
________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) AR20080012773
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ABCMR Record of Proceedings (cont) AR20080012773
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