IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090005391 


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 late husband, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for her at the time of his retirement. 

2.  The applicant states, in effect, that her late husband was not advised he needed to file an update of his survivor benefits within 1 year of their marriage. The FSM received his 20-Year Letter on 30 October 1992 and they were married on 31 July 1999.  The FSM retired from the Indiana Army National Guard (INARNG) on 31 August 1999.  During that timeframe, he did not file the DD Form 1883 (SBP Election Certificate) naming her as his spouse thereby ensuring his elections were set for the spouse or immediate coverage for retirement pay and benefits if he passed before reaching his 60th birthday.    

3.  In support of her application, the applicant provides copies of the FSM's 1972, 1976, and 1982 DD Forms 214 (Certificate of Release or Discharge from Active Duty), his 20-Year Letter, their marriage certificate, his 1999 NGB Form 22 (Report of Separation and Record of Service) and ARNG separation orders, his U.S. Army Reserve (USAR) separation orders, his death certificate, a letter from the U.S. Army Armor Center and Fort Knox, KY, and his Chronological Statement of Retirement Points.  





CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he was born on 5 February1951.  He was appointed in the INARNG, as a second lieutenant, on 27 June 1981, with prior enlisted service in the U.S. Marine Corps.

2.  The FSM was issued a 20-Year Letter on 30 October 1992.

3.  The FSM and the applicant were married on 31 July 1999.

4.  The FSM was honorably separated from the INARNG in the rank of major on 31 August 1999.  He was transferred to the USAR Control Group (Reinforcement).  

5.  The FSM was reassigned from the USAR Control Group (Reinforcement) to the Retired Reserve on 29 November 2004. 

6.  The FSM died on 28 February 2009.  

7.  The applicant submitted a copy of a letter, dated 5 March 2009, from the U.S. Army Armor Center and Fort Knox, wherein she was advised that the Defense Finance and Accounting Service (DFAS) had been notified and retirement pay was stopped as of the date of the FSM's death.  She also submitted a copy of the FSM’s Chronological Statement of Retirement Points, dated 7 April 2009, that erroneously shows zero credit of qualifying service for retired pay.  

8.  The FSM would have reached age 60 on 5 February 2011.

9.  A staff member of the DFAS – Retired Pay section verified that the applicant did not have a DD Form 1883 (SBP Election Certificate) or a DD Form 2656 (Data for Payment of Retired Personnel) on file at DFAS-Retired Pay section.  The only document located was his 20 year letter from the ARNG.

10.  A staff member of the DFAS – Cleveland Center, verified that the FSM was not receiving retired pay and there was no SBP election on file with that office.

11.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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.  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 waited election until he applied for retired pay and elected to participate in the standard SBP.

12.  Public Law 108-374, enacted 28 October 2004, established open enrollment period (1 Oct 05 to 30 Sep 06) for members not participating to the fullest possible extent.  

13.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

14.  The Defense Finance and Accounting Service interprets the first part of Title 10, U. S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was issued a 20-Year Letter on 30 October 1992.  He and the applicant were married on 31 July 1999.  He was separated from the INARNG and transferred to the Individual Ready Reserve (IRR) on 31 August 1999.  He was transferred from the IRR to the Retired Reserve on 29 November 2004.  

2.  Although the FSM had qualified for a reserve retirement, he died prior to reaching age 60.  There is no evidence he ever made an RCSBP election, added his wife within a year of their marriage, or sought to enroll her in the SBP during an open season enrollment period.

3.  Based on the foregoing, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to an annuity under the SBP. 

4.  The applicant submitted a copy of a letter she received from the U.S. Army Armor Center and Fort Knox which advised her late husband’s retirement pay had been stopped.  It appears this notice contained erroneous information concerning his retired pay due to an administrative error.  As the FSM was not receiving retired pay this paragraph of the letter was not applicable in her case.

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)                                         AR20090005391



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ABCMR Record of Proceedings (cont)                                         AR20090005391



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