IN THE CASE OF:	  

		BOARD DATE:	       24 September 2009

		DOCKET NUMBER:  AR20090008143 


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

2.  The applicant states that the FSM submitted his retirement packet to the U.S. Army Human Resources Command (USAHRC), St. Louis, MO.  His request for retirement was accepted and he was issued a retired order; however, he died 21 days before reaching age 60.  She adds that she always thought the FSM elected immediate SBP coverage from the time he signed the DD Form 1883 (Survivor Benefit Plan Election Certificate) when the FSM received his 20-year letter.

3.  The applicant provides a copy of a DD Form 2656 (Data for Payment of Retired Personnel), dated 16 March 2004; a copy of her certificate of marriage, dated 4 November 1969; an illegible copy of an individual's birth certificate; a copy of the FSM's Army National Guard (ARNG) Retirement Points History Statement, dated 25 February 2004; a copy of a personal check, dated 4 December 2006; a copy of a DD Form 2656-7 (Verification of Survivor Annuity), dated 4 December 2006; a copy of a Direct Deposit form, dated 4 December 2006; a copy of a cancelled personal check; a copy of a W-4P (Withholding Certificate for Pension or Annuity Payment), dated 4 December 2006; a copy of the FSM’s death certificate, dated 24 November 2005; a copy of the FSM's revocation of retirement orders, dated 24 November 2005; a copy of Orders   P08-588225, issued by USAHRC, St. Louis, MO, on 22 January 2007; a copy of a letter, dated 26 February 2007, from the Defense Finance and Accounting Service (DFAS); and a copy of a letter, dated 21 March 2008, from USAHRC, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 16 December 1945 and enlisted in the Montana Army National Guard (MTARNG) on 29 September 1965.  He subsequently entered active duty for training (ACDUTRA) on 26 January 1967, was trained in and awarded military occupational specialty 94B (Cook), and was honorably released from ACDUTRA to his ARNG unit on 28 May 1967.  

2.  On 15 November 1969, the FSM married Kathryn, the applicant.

3.  The FSM's records also show he executed several reenlistments and/or extensions in the ARNG, served in various staff and leadership positions, and attained the rank/grade of sergeant first class (SFC)/E-7.

4.  On 6 May 1988, by memorandum, Department of Military Affairs, MTARNG, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This memorandum 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.

5.  On 30 June 1988, the FSM completed a DD Form 1883.  He indicated that he was married and had dependent children, and elected not to participate in the Reserve Component SBP (RCSBP).  He also placed an "X" in Option A, indicating that he defers his election to age 60.  His spouse Kathryn, the applicant, authenticated this form by placing her signature in the appropriate block. 

6.  On 8 July 1998, Office of the Adjutant General, MTARNG, published Orders 189-022 reassigning the FSM to the Retired Reserve, effective 30 June 1998.  




7.  On 16 April 2004, nearly 12 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.

8.  On 17 August 2005, USAHRC-St. Louis, MO, published Orders P08-588225, placing the FSM on the retired list in his retired grade of SFC, effective 16 December 2005, the date he would have turned 60.

9.  On 24 November 2005, the FSM died at the age of 59.

10.  On 22 January 2007, USAHRC, St. Louis, MO, published Orders            P08-588225, revoking the FSM's retirement orders. 

11.  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.  

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 indicate that he elected to decline RCSBP enrollment and choose at age 60 whether to start SBP participation.  His spouse, the applicant, signed this form. 

3.  The FSM, by declining immediate coverage 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.  Although the FSM completed his retirement application and desired to elect spouse coverage, he died prior to reaching his 60th birthday.  His deferred election never took effect.  

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, regrettably, 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)                                         AR20090008143



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008143



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1