IN THE CASE OF:	  

		BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090006973 


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

2.  The applicant states that her deceased husband’s 20-year letter notified him that he would have the opportunity to select survivor benefits at the time he applied for retired pay at age 60.  She adds that her deceased husband completed a retirement packet on 24 April 2007, including a DD Form 2656 (Data for Payment of Retired Personnel), in which he selected her to receive survivor benefits.  She further adds that although he died prior to reaching age 60, his application was received by the Army and both his intent and election were clear. She concludes that her husband was proud to serve his country, first in Vietnam, followed by 20 years of U.S. Army Reserve (USAR) service.  

3.  The applicant provides a copy of a DD Form 2656, dated 24 July 2007; a copy of the FSM’s death certificate, dated 15 June 2007; a copy of the FSM’s Notification of Eligibility for Retired Pay at age 60 (20-year letter), dated 20 November 1995; a copy of the FSM’s application for retired pay, dated 17 April 2007; a copy of Standard Form (SF) 1199A (Direct Deposit Sign-Up Form); a copy of the FSM’s ARPC Form 249-E (Chronological Statement of Retirement Points), dated 25 April 2007; and a copy of a confirmation post card from the U.S. Army Human Resources Command (USAHRC), St. Louis, MO in support of her request.


CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 26 November 1948 and enlisted in the Regular Army (RA) for a period of 3 years on 10 October 1969.  He held military occupational specialty (MOS) 13E (Field Artillery Operations and Intelligence Assistant) and completed nearly 12 months of foreign service in Vietnam.

2.  On 4 September 1971, the FSM married the applicant.

3.  The FSM was honorably released from active duty on 11 April 1972 and he was transferred to the USAR Control Group (Annual Training) for completion of his Reserve obligation.

4.  After a break in service and a period of service in the Army National Guard, the applicant enlisted in the USAR for a period of 3 years on 10 October 1979.  He subsequently executed a series of extensions and/or reenlistments in the USAR, including two 3-year reenlistments on 26 August 1982 and 10 August 1985 and two 6-year reenlistments on 5 June 1988 and 12 March 1994.  He attained the rank/grade of master sergeant (MSG)/E-8 during his tenure of service.

5.  On 20 November 1995, the U.S. Army Reserve Personnel Center (now known as the USAHRC) 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.  This letter also notified the FSM that he was entitled to participate in the RCSBP and that "By law, he had only 90 calendar days from the date he received this letter to submit his Survivor Benefit Plan Election Certificate (DA Form 1883).  If he did not submit his election within 90 days, he would not be entitled to survivor benefit coverage until he applies for retired pay at age 60.  If he did not elect coverage, and should he die before age 60, his survivor would not be entitled to benefits.

6.  There is no indication in the FSM's records that he elected to participate in the Reserve Component SBP (RCSBP) during his 90-day window of opportunity in 1995.  Additionally, there is no indication in the record that the U.S. Army Reserve Personnel Center notified the applicant that the FSM either declined coverage or did not make an election, as it is not required by law.

7.  On 19 February 1998, Headquarters, 95th Division (Institutional Training) published Orders 50-03 reassigning the FSM to the Retired Reserve, effective 1 March 1998.  
8.  On 24 April 2007, nearly 19 months prior to reaching his 60th birthday, the FSM completed a DD Form 2656.  He indicated that he was married and elected spouse only SBP coverage based on the full amount.  He and a witness authenticated this form by placing their signatures and dates in the appropriate place.

9.  On 15 June 2007, the FSM died at the age of 58.

10.  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.

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.  By law and regulation, Soldiers who complete 20 or more years are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  The FSM's records do not indicate that he elected to participate in the RCSBP and the applicant has not provided any evidence showing that he elected to participate in the RCSBP.

3.  The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.  Additionally, since he chose to defer his election to age 60 but died prior to age 60, there was no coverage at the time of death.

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 requested relief.

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)                                         AR20090006973



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ABCMR Record of Proceedings (cont)                                         AR20090006973



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