IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090006801 


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, a Survivor Benefit Plan (SBP) annuity due based on the death of her husband, a former service member (FSM).

2.  The applicant states, in effect, her husband informed her she was his sole beneficiary for SBP benefits, which she needed to apply for upon his 60th birthday.  In 1997, she sent the required documents to the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri.

3.  The applicant provides the FSM's death certificate, marriage certificate, and ARPERCEN letter with attached retirement documents in support of the application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The FSM's record shows that after serving on active duty in the Army of the United States from 7 September 1961 through 29 August 1963, he served continuously in the U.S. Army Reserve (USAR) until 21 June 1985, at which time he was transferred to the Retired Reserve.

3.  The applicant and FSM were married on 15 December 1967.

4.  The FSM's record contains orders directing his voluntary reassignment from a troop program unit of the USAR to the Retired Reserve effective 21 June 1985.  His record is void of a notification of retirement eligibility letter (20-year letter); however, the Reserve Personnel Accounting System (RPAS) contains an entry indicating a 20-year letter was issued on 19 March 1985.

5.  The RPAS statement in the FSM's file confirms he completed 20 years of qualifying service as of 28 August 1983 and that he completed a total of 20 years, 11 months, and 23 days of qualifying service for non-regular retirement at age 60.  The RPAS statement lists the FSM's date of birth as 1 February 1936.

6.  The FSM's record is void of any documents or entries indicating the FSM completed a Reserve Component SBP (RCSBP) election upon completing 20 years of qualifying service in 1983 or in conjunction with his transfer to the Retired Reserve on 21 June 1985.

7.  On 17 April 1987, the FSM died.

8.  On 23 December 1997, in response to a request from the applicant regarding her eligibility for benefits based on the FSM's military service, the Chief, Retirement Services, ARPERCEN, informed the applicant that he was enclosing a retirement certificate and orders that were posthumously published for the FSM.  It further indicated that the Defense Finance and Accounting Service (DFAS) would be notified and authorized to pay an annuity to her as the beneficiary.  His DFAS record is void of any documents or entries that indicate the FSM ever completed a RCSBP election form.

9.  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.  It provides the following three options:  Option A is to elect to decline enrollment and choose at age 60 whether to start RCSBP participation, option B is to 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, and option C is to elect that a beneficiary receive an annuity immediately upon their death if before age 60.
10.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 (20-year letter) or wait until he/she applied for retired pay at age 60 and elect to participate in the standard SBP.  If death occurred prior to reaching age 60, there was no entitlement to an SBP annuity.

11.  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 default election when an election form was not submitted or is not on file is option C.  This law is applicable to cases where the 20-year letter was issued after 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive an SBP annuity based on the death of the FSM has been carefully considered and found to have merit as a matter of equity.

2.  The evidence of record does not include a hard copy of the FSM's 20-year letter and/or any documentation that indicates the FSM was counseled or provided documents affording him the opportunity to submit an RCSBP election form upon attaining 20 years of qualifying service in 1983 or upon his transfer to the Retired Reserve in 1985.  As a result, there are insufficient records to establish whether or not the FSM voluntarily chose to decline RCSBP coverage or if he was ever properly afforded the opportunity to make an election to participate in the RCSBP.

3.  Although the law in effect at the time required a member to submit an RCSBP election form within 90 days of receiving the 20-year letter or wait until he or she applied for retired pay at age 60, the current law, which became effective on 1 January 2001, established the default option as option C (Immediate Coverage) for all members who fail to submit an election form in conjunction with obtaining 20 years of qualifying service.

4.  Even though the current law has no retroactive provisions which prevents its direct application in this case, this change clearly shows Congress's intent to ensure protection by requiring spouse concurrence in a non-election of coverage and by providing the default election of option C, immediate coverage, in cases where the election form is not submitted in a timely manner.  Given the absence of a hard copy of the FSM's 20-year letter, it is reasonable to conclude the FSM was never provided the counseling and necessary forms required to make an informed RCSBP election decision in a timely manner.  Therefore, it would serve the interest of equity to find in favor of the applicant and to conclude that it was the FSM's intent to provide RCSBP protection for his spouse.

5.  In view of the facts of this case, it would be appropriate to correct the FSM's record to show he submitted his RCSBP election form, electing immediate full spouse coverage (option C) within 90 days of receipt of his 20-year letter, and to show he elected immediate full spouse coverage (option C).  Further, the applicant should be provided the SBP annuity due her based on the death of the FSM on 17 April 1987 minus any SBP premiums due from 28 August 1983, the date he attained 20 years of qualifying service (date of his election), through 17 April 1987, the date of his death.

BOARD VOTE:

_____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM submitted his RCSBP election form electing immediate full spouse coverage under option C on 28 August 1983 and by providing the applicant any SBP annuity payments due from the date of the FSM's death, minus any premiums due from 28 August 1983 through 17 April 1987.



      ____________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)                                         AR20090006801



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ABCMR Record of Proceedings (cont)                                         AR20090006801



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