IN THE CASE OF:	

		BOARD DATE:	       2 JUNE 2009

		DOCKET NUMBER:  AR20090000909 


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 entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her deceased husband, a former service member (FSM).

2.  The applicant states that she was not notified that the FSM did not elect the SBP and that the Army National Guard (ARNG) should have sent a letter to let her know that he did not make an election.

3.  The applicant provides a copy of her certificate of marriage, dated 27 April 1970; a copy of the FSM's certificate of death, dated 14 February 2008; a copy of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 April 1969; and a copy of the Department of Veterans Affairs dependency and indemnity compensation (DIC) decision, dated 29 April 2008, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show that he was born on 2 September 1948 and was inducted into the Army of the United States on 7 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11E (Armor Crewmember).  He was honorably separated in the rank/grade of specialist four/E-4 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 9 September 1969.

2.  The FSM’s records also show he remained in the USAR Control Group (Annual Training) from 10 September 1969 to 26 August 1973.  He married the applicant on 27 April 1970.

3.  The FSM’s records further show he enlisted in the Georgia Army National Guard (GAARNG) on 27 August 1973.  He subsequently executed a series of reenlistments and/or extensions in the GAARNG including a 1-year reenlistment on 27 August 1973, two 3-year extensions on 26 August 1975 and 27 August 1981, and a 2-year extension on 11 June 1989.

4.  On 26 May 1992, by memorandum, the FSM was notified that he was not selected for continued unit participation by a qualitative retention board and that he would be discharged on 10 July 1992 and transferred to the U.S. Army Reserve Control Group (Reinforcement) or the Retired Reserve, if otherwise qualified.

5.  On 10 July 1992, the Office of the Adjutant General, Atlanta, GAARNG, published Orders 135-141 directing the FSM’s transfer to the Retired Reserve in the rank/grade of staff sergeant (SSG)/E-6 effective 10 July 1992.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows he completed over 26 years of total service for pay. 

6.  On 15 July 1992, the Military Division of the GAARNG 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. 

7.  There is no indication in the FSM's records showing that he elected to participate in the RCSBP during the 90-day window of opportunity subsequent to receipt of a 20-year letter.  Additionally, there is no indication in the record that the ARNG or the USAR notified the applicant that the FSM either declined coverage or did not make an election, as it was not required by law.

8.  On 14 February 2008, the FSM died at the age of 59.  He would have turned 60 on 2 September 2008.

9.  On 28 June 2008, the U.S. Army Human Resources Command (HRC), St. Louis, MO, published Orders P06-809222 placing the applicant on the Retired List effective 2 September 2008.  However, on 28 August 2008, and subsequent to receipt of the FSM’s certificate of death, HRC-St. Louis issued Orders        P06-809222A01 revoking the FSM’s retirement orders. 

10.  The HRC, St. Louis, MO, Integrated Web Services (IWS) is a web-based collection of data, applications, and tools to assist Career Managers and other Human Resource Personnel in supporting Active Army, Army Reserve, and Army National Guard Soldiers, veterans, retirees, family members, and other stakeholders.  The principal IWS application is the Soldier Management System (SMS).  This system shows the following entries for the FSM:

	a.  on 7 January 2008, the FSM contacted HRC-St. Louis requesting assistance in completing his paperwork for retired pay and his SBP application.  He was provided with assistance regarding completion of the DD Form 2656 (Data for Payment of Retired Personnel); and

	b.  on 10 September 2008, orders placing the FSM on the Retired List were revoked as a result of the FSM's death.  Additionally, another entry on this date shows that the FSM did not execute a DD Form 1883 (Survivor Benefit Plan Election Certificate). 

11.  An email from the Defense Finance and Accounting Service (DFAS), dated 31 March 2009, indicated that any entitlement to SBP benefits would have had to be filed prior to the FSM's retirement.  In effect, there is no record at DFAS that the FSM was enrolled in the SBP.

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.  In other words, failure to elect an option resulted in the default election of option A.

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

2.  The evidence of record shows that the FSM was notified by memorandum on 15 July 1992 that he had become eligible for a Reserve retirement upon reaching age 60.  He had the option at that time to participate in the RCSBP Plan.  However, his records do not indicate that he elected to participate in the RCSBP and the applicant has not provided sufficient evidence showing that the FSM elected to participate in the RCSBP.

3.  The FSM, by not making an election to participate in the RCSBP, effectively deferred his election to age 60 when he could apply for retired pay.  Accordingly, as he reached age 60, he inquired about the SBP and requested assistance from HRC officials as shown on the HRC SMS-IWS.  Unfortunately, the FSM died before completing the retired pay paperwork and before reaching age 60.

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)                                         AR20080017302



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ABCMR Record of Proceedings (cont)                                         AR20090000909



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