IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090002430
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 spouse, a former service member (FSM), be corrected to show that he elected to participate in the Reserve Component (RC) Survivor Benefit Plan (SBP) and that she receive his SBP annuity.
2. The applicant states that she believes the failure of the FSM to enroll in the RCSBP was due to an administrative error by the personnel noncommissioned officer's unfamiliarity with the procedures to submit the proper documents necessary for her to receive SBP benefits.
3. The applicant provides a copy of the FSM's 20-year letter, the FSM's certificate of death, a copy of the FSM's Servicemember's Group Life Insurance Election and Certificate, a copy of the FSM's National Guard Bureau Form 22 (Report of Separation and Record of Service), a copy of a DD Form 2556-7 (Verification for Survivor Annuity) and a copy of her marriage license to the FSM.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 28 May 1954 and enlisted in the U.S. Army Reserve (USAR) under the delayed entry program on 26 March 1973 for a period of 3 years. He enlisted in the Regular Army on 6 June 1973 for a period of 3 years and served until he was honorably released from active duty on 4 June 1976 due to the expiration of his term of service. He was transferred to the USAR Control Group (Reinforcement) to complete his statutory service obligation.
2. On 20 August 1976, he enlisted in the Ohio Army National Guard (OHARNG) and served until he was honorably discharged on 25 March 1979. He married the applicant on 2 August 1980.
3. On 22 September 1984, he again enlisted in the OHARNG and continued to serve through continuous reenlistments. He was issued his 20-year letter on 14 May 1997.
4. On 18 November 1998, he was honorably discharged from the OHARNG and was transferred to the Retired Reserve.
5. The FSM passed away on 29 November 2003 at the age of 49 as a result of pneumonia and chronic-obstructive pulmonary disease.
6. A review of the FSM's records failed to show that the FSM ever made an RCSBP election. At the time of his death, his wife (the applicant) and four children, ranging in ages from 22 to 11, were listed as his dependents. Additionally, telephonic contact with officials at the Defense Finance and Accounting Service failed to reveal any SBP elections (DD Form 1883, SBP Election Certificate) on file.
7. 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, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Spousal notification was required only if the member elected to participate in the RCSBP for less than full spouse coverage. Before the law was amended as noted below, 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 applies for retired pay and elects to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A.
8. Public Law 105-261, enacted 17 October 1998, established an open enrollment period (1 March 1999-29 February 2000) for the SBP for members not participating to the fullest possible extent.
DISCUSSION AND CONCLUSIONS:
1. While it is indeed unfortunate that no documentation can be found to show that the FSM made an SBP election within the 90 days required to do so after receiving a 20-year letter, the automatic default provisions of the law prevailed in this case and the election of option A became the FSM's SBP election option.
2. Unfortunately, the FSM died well before reaching age 60 and never became eligible to receive retired pay. Therefore, no one is authorized to receive an annuity based on the FSM's service and death.
3. While it is indeed regrettable, the applicant has failed to convincingly show through the evidence submitted with her application and the documentary evidence of record that the FSM made a valid SBP election. Accordingly, she is not entitled to receive an SBP annuity based on the FSM's death.
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.
____________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) AR20090002430
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