IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080013181 


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 husband, a former service member (FSM), be corrected to reflect her entitlement to Reserve Component (RC) Survivor Benefit Plan (SBP) coverage.
 
2.  The applicant's arguments are provided by counsel.

3.  The applicant provides the following documents in support of her application:  Last Will and Testament; paralegal letter, dated 14 July 2008; Marriage Certificate; Death Certificate; Notification of Eligibility for Retired Pay at Age 60, dated 5 July 2007; Retirement Services Information Sheet; RCSBP Election Certificate (DD Form 2656-5); and a Short Certificate Letters Testamentary.

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows that after having previously served on active duty in the Regular Army, he enlisted in the Army National Guard on 24 September 1988.

2.   The FSM and applicant married on 14 April 2007.

3.  On 20 June 2007, after the Military Occupational Specialty (MOS) Medical Retention Board determined the FSM could no longer perform in his MOS and that he did not meet medical retention standards, the FSM elected to be considered for the Early Reserve Retirement for disabled members program.

4.  On 5 July 2007, the FSM received a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).  This document informed the FSM of his entitlement to participate in the RCSBP.  He was also provided an RCSBP Election Certificate and was informed he had to return the certificate within 90 days of receipt of the notification letter electing a different coverage or he would automatically be enrolled in the RCSBP under Option C for spouse only coverage based on full retired pay.

5.  On 13 August 2007, the FSM was transferred to the Retired Reserve.

6.  On 12 October 2007, the FSM’s commander was informed in a memorandum from the Adjutant General's Office that his RCSBP election form had not been received within the 90 days required.  It further indicated that the Standard Installation/Division Personnel System (SIDPERS) indicated he was single and, therefore, he was not subject to automatic enrollment under Option C or immediate annuity clause, and that SIDPERS had been updated to reflect Option A, meaning that he had deferred making an election until age 60, or if his marital status changed, he could change the election at that time.  The FSM was also mailed a copy of the memorandum.

7.  On 12 February 2008, the FSM died at the age of 44.  The death certificate shows he was married to the applicant at the time.

8.  A letter from the applicant's paralegal representative relative to the FSM's estate states, in effect, that the applicant was designated as the beneficiary of the FSM’s life insurance prior to their marriage and was left the FSM's entire estate.  Therefore, it was clearly the FSM's intention for the applicant to receive the RCSBP annuity and any other financial benefits.

9.  In connection with processing this case, a member of the Board staff contacted an official from the Defense Finance and Accounting Services, Cleveland, Ohio, who confirmed that its data base showed that no DD Form 2656-5 (Election Certificate) had ever been submitted by the FSM.

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.  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.

11.  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 results in the default election of option C.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to receive an SBP annuity based on the death of her husband, an FSM, was carefully considered and found to have merit.  By law, written spousal consent is required to allow a Reserve service member to be able to delay making an RCSBP election until age 60.  The failure of an eligible Reserve service member to elect an option results in the assignment of the default option, which is Option C (immediate full coverage) for members who were issued retirement eligibility letters after 1 January 2001.

2.  The evidence of record confirms that although the Defense Enrollment Eligibility Reporting System (DEERS) was not updated and the FSM did not timely report his marriage to the applicant, he and the applicant were in fact married on 14 April 2007.  Further, the FSM received his 15-Year Letter on 5 July 2007, and he failed to submit his RCSBP election within 90 days of receipt of the letter.

3.  Given he was legally married to the applicant and failed to make an RCSBP election with spousal concurrence within 90 days of receipt of his retirement eligibility notification (15-Year Letter), the FSM should have automatically been enrolled in the RCSBP under Option C (full coverage), which was the appropriate default option.  Therefore, it would be appropriate to correct all records to include DEERS to show the applicant and FSM were married on 14 April 2007, that the FSM was enrolled in the RCSBP under Option C (full coverage), and that the applicant was the FSM’s legal spouse and SBP beneficiary at the time of the FSM’s death on 12 February 2008.  Further, the applicant should be provided the SBP annuity due since the date of the FSM’s death.


BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by updating the DEERS by showing the applicant was married to the FSM on 14 April 2007 and by showing the FSM’s SBP election was defaulted to Option C with full spouse coverage and by providing the applicant all SBP annuities due effective the day after the date of the FSM’s death.




      _________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)                                         AR20080013181



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ABCMR Record of Proceedings (cont)                                         AR20080013181



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