IN THE CASE OF:	  

		BOARD DATE:	        10 February 2009

		DOCKET NUMBER:  AR20080017640 


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 that the records of her deceased husband, a former service member (FSM), be corrected to show he elected enrollment in the Reserve Component Survivor Benefit Plan (RCSBP), Option C, spouse coverage, and entitlement to the RCSBP benefits based on his death prior to age 60.

2.  The applicant states that during a record review, the FSM was told that his election to participate in the RCSBP was not on file and that he immediately sought assistance in correcting this oversight/clerical error.

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Self-authored letter, dated 8 October 2008.

	b.  FSM's prior DD Form 149 (Application for Correction of Military Records), dated 24 February 2008.

	c.  Letter, dated 3 April 2008, from the Army Review Boards Agency (ARBA), Support Division, St. Louis, Missouri (MO), responding to the FSM. 

	d.  Unsigned and undated letter.

	e.  Two letters, dated 7 March 2008 and 26 November 2007, from the Honorable Lamar Alexander, United States Senator.
	f.  Letter, dated 29 February 2008, U.S. Army Human Resources Command (HRC), St. Louis, MO, to Senator Alexander.

	g.  Letter, dated 21 November 2007, from the Office of the Inspector General, Joint Forces Headquarters, Tennessee Army National Guard (TNARNG), Nashville, TN.

	h.  FSM’s Certificate of Death, dated 21 August 2008.

	i.  Marriage certificate, dated 19 June 1989.  

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 16 November 1949 and initially enlisted in the U.S. Air Force (USAF) for a period of 4 years on 11 August 1969.  He held military occupational specialty (MOS) 60251 (Air Freight Traffic Specialist).  He also executed a second reenlistment in the USAF and was honorably released from active duty in the rank of sergeant (Sgt/E-4) on 13 September 1974 and transferred to the USAF Reserve.

2.  The FSM’s records further show he enlisted in the TNARNG for a period of 6 years on 16 February 1979.  He held MOS 52D (Power Generation Equipment Repairman) and executed a series of extensions and/or reenlistments in the TNARNG.  

3.  On 19 June 1989, the applicant and the FSM were married in Las Vegas, Nevada. 

4.  The FSM was promoted to staff sergeant (SSG/E-6) on 14 June 1990.  

5.  On 2 July 1993, Headquarters, TNARNG, Nashville, TN, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  Attached to this letter was a National Guard Bureau (NGB) Form 23 (Retirement Points Record); Survivor Benefit Plan Summary, and NGB Pamphlet 600-5 (Handbook for Retiring Soldiers and their Families).  

6.  There is no indication in the FSM's records which shows that he elected to participate in the RCSBP during his 90-day window of opportunity in 1993.  Additionally, there is no indication in the record that the Army National Guard or the US Army Reserve Personnel Center notified the applicant that the FSM either declined coverage or did not make an election, as it was not required by law.
7.  On 27 August 1996, Headquarters, TNARNG, Nashville, TN, published Orders 167-275, ordering the applicant’s honorable discharge from the ARNG and assigning him to the U.S. Army Reserve Control Group (Retired Reserve) effective 25 July 1996.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of service) he was issued shows he completed a total of 24 years, 7 months, and 17 days of total service for pay as follows:  5 years, 1 month, and 3 days of active service; 6 years, 1 month, and 12 days of ARNG service; and 13 years, 5 months, and 2 days of prior service.  

8.  On 20 February 2008, by letter addressed to U.S. Senator Lamar Alexander, (TN), the Chief, Transition and Separation Branch, HRC-St. Louis, MO, responded to the Senator's letter, dated 12 December 2007, concerning the FSM's request for assistance in obtaining RCSBP coverage for his family.  The Chief stated that at the time the FSM received his 20-year notification letter, the law required the Soldier to enroll within 90 days of receipt of his retirement eligibility and that failure to enroll within 90 days would result in no coverage.  The Chief added that a Soldier would have another opportunity to enroll when he applied for retirement at age 60.  Furthermore, as the FSM was a member of the TNARNG and there were no records of an enrollment at HRC-St. Louis, the TNARNG was contacted, but a search of their archives failed to reveal that the FSM had enrolled in the RCSBP.  

9.  On 24 February 2008, the FSM submitted a DD Form 149 (Application for Correction of Military Records) to the Army Board for Correction of Military Records and requested his DD Form 1883 (Survivor Benefit Plan Election Certificate) be corrected.  However, by letter, the ARBA Support Division, St. Louis, MO, responded to the applicant on 3 April 2008 and informed him that no action could be taken on his application because he did not clearly and precisely indicate what he wanted corrected.  He was provided with a new DD Form 149 and was asked to resubmit his application and be specific about his request.

10.  On 21 August 2008, the FSM died at the age of 58.

11.  In her self-authored letter, dated 8 October 2008, the applicant states that the FSM attempted to correct his military records to show he intended to be enrolled in the SBP, an option that he elected to be enrolled in upon receiving his 20-year letter and that his DD Form 1883 must have been misplaced and was not entered into his military records.  She adds that her request is on line with the FSM’s initial intent and subsequent request to be enrolled in the SBP, spouse coverage, Option C.  She concludes that the FSM served honorably and faithfully for 26 years and that disapproving this request would have a devastating financial impact on her life.  

12.  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.  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 wait until he/she applied for retired pay and elected to participate in the standard SBP.

13.  In accordance with Title 10, U.S. Code, section 1448a(3)(B), the requirement to give a spouse notice of an RCSBP election was only mandated in those cases if the member provided coverage at less than the maximum level, elected children only coverage, or declined coverage.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive RCSBP benefits based on the death of her husband, a FSM, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation in effect at the time, a member must elect to participate in the RCSBP within 90 days of receiving the 20-year letter in order for a designated beneficiary to receive benefits upon that member's death.  The FSM's records do not indicate that he elected to participate in the RCSBP and the applicant has not provided sufficient evidence, such as the FSM's copy of the DD Form 1883, showing that the FSM elected to participate in the RCSBP.

3.  The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, deferred his election to age 60 by default.  As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is no basis to grant the applicant's request for RCSBP benefits.


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)                                         AR20080017640



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ABCMR Record of Proceedings (cont)                                         AR20080017640



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