IN THE CASE OF:	  

		BOARD DATE:	       30 December 2008

		DOCKET NUMBER:  AR20080013313 


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 spouse of a retired deceased former service member (FSM), requests that she be entitled to his Reserve Component Survivor Benefit Plan (RCSBP) annuity payment from the date of his death on 8 January 2007.

2.  The applicant states that the Human Resources Command (HRC), St. Louis, advised her that there is no evidence that the FSM made an RCSBP election upon his retirement.  Since as a Reserve Soldier he could not receive retirement pay until age 60, and since he died before he turned 60 and received retirement pay, no RCSBP premium was ever deducted.  Nevertheless, the applicant contends she is entitled to receive the SBP annuity.  She never relinquished her right to receive SBP.  She also contends that because of her husband's status as an Individual Mobilization Augmentee (IMA) after his release from active duty, he did not belong to a unit, and they were not properly made aware of or counseled about the SBP as a prelude to retirement.

3.  The applicant provides a copy of the FSM's death certificate, a copy of their marriage certificate, a Privacy Act Statement, a copy of AHRC Form 249-2-E (Chronological Statement of Retirement Points), three letters of support, and a copy of a Department of Veterans Affairs claim for death benefits.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 10 July 1947.  He had prior service in the U.S. Navy, the Army National Guard, and the U.S. Army Reserve (USAR).  His Certificate of Marriage Registration from the State of New York shows the FSM married the applicant on 13 August 1971.

2.  On 13 January 1999, HRC-St. Louis notified the FSM of his eligibility for retired pay upon application at age 60.  This notification informed him that if he did not submit his RCSBP election within 90 calendar days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60.  If he did not elect coverage and should die before age 60, his survivors would not be entitled to benefits.  Enclosed with the notification was detailed information about the RCSBP.

3.  He continued to serve in the USAR until 31 August 2004 when he was placed in the Retired Reserve for non-participation. A review of the FSM's transactions maintained on the Soldier Management System (SMS), HRC-St. Louis, shows that on 25 July 2003, the applicant made his initial request to be placed in the Retired Reserve.  On 15 June 2004, the FSM followed-up on his request for transfer to the Retired Reserve and a retirement packet.

4.  On 8 January 2007, the FSM died at the age of 59.

5.  There is no evidence that the FSM executed an RCSBP election form when he was notified of his eligibility for retired pay upon age 60.  A review of his SMS transactions shows that on 25 January 2007, the Retirement Services Officer (RSO) at Fort McPherson, Georgia, contacted HRC-St. Louis, on the applicant's behalf regarding entitlement to the SBP annuity.  The RSO and applicant were advised at that time that the FSM received his 20-year letter, he had not responded to the notification of his RCSBP options, and therefore, he never enrolled.

6.  On 29 October 2007 and again on 27 May 2008, the applicant and RSO at Fort McPherson were advised by HRC-St. Louis that the FSM never enrolled in SBP because he did not respond to the notification of his SBP election options that was sent to him with his 20-year letter.  The applicant had been mailed a letter advising her of such.

7.  The applicant provided letters of support from a retired major general, a retired captain, and a retired U.S. Army Special Forces sergeant major requesting that the FSM's records be corrected to show he made a timely SBP election.  They all attest to the FSM's exemplary service and that they believe he earned SBP entitlement.  They contend that after 1 January 2001, the law changed and as of that date if a service member failed to elect the SBP option, the widow receives it automatically.  The FSM served on active duty in Uzbekistan after 1 January 2001 (from 8 October 2001 – 25 April 2002).  The change in the law was recognition of the obsolete requirements in place before the change.  The letters state that the FSM was an IMA Soldier with no unit headquarters and he did not receive the usual briefings about retirement.  Since there is no record that the FSM declined SBP, the widow did not relinquish her right to her entitlement.

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 60 to provide an annuity for their survivors should they die before reaching age 60.  Elections are made by category, not by name.  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, if an election was not made when the Soldier received his or her 20-year letter with the RCSBP election form, the election was automatically defaulted to option A for USAR Soldiers, deferring the decision until age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

9.  Public Law 107-107, enacted 28 December 2001, extended SBP eligibility to spouse or eligible children of all active duty deaths classified in the line of duty since 10 September 2001.  Annuity was computed as if the member was retired with full disability on the date of death.

10.  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.  In order to be entitled to the SBP annuity, the applicant would have to show that her husband, the FSM, timely elected to participate in the RCSBP.  It appears clear that when the FSM was provided his 20-year letter from HRC-St. Louis, he was also notified of his eligibility to participate in the SBP and to make an election at that time, or to defer his decision to age 60.  HRC-St. Louis confirms that he did not respond to this notification and did not enroll in the SBP at that time.  Therefore, there is no evidence that the FSM did not receive sufficient notification of his eligibility to participate in the SBP.

2.  Since the FSM did not make an SBP election, the public law in effect at the time stipulated that the election was then automatically defaulted to option A for USAR Soldiers, deferring the decision until age 60.  At age 60, the FSM would have been given the option to participate in the SBP program and the RCSBP costs would have been deducted from the annuity.  Regrettably, the FSM died at the age of 59.  Although the public law changed in October 2000 as noted above, the change was not retroactively applicable.

3.  The law regarding SBP eligibility for all active duty deaths was changed in December 2001.  However, the FSM was not on active duty at the time of his death.

4.  Given the above, there is no basis upon which to grant the applicant's request.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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)                                         AR20080013313



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ABCMR Record of Proceedings (cont)                                         AR20080013313



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