BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090008240 


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 he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states, in effect, that the importance of completing the DD Form 1883 (Survivor Benefit Plan Election Certificate) was never explained to the FSM.  She also indicates the FSM received a 20-year letter in 1992.

3.  The applicant provides the following documents in support of her request:  death certificate; marriage license; National Guard Bureau (NGB) Notification of Eligibility for Retired Pay at Age 60 Letter, dated 6 August 1998; NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement), dated 31 January 1995; two NGB Forms 22 (National Guard Bureau (NGB) Report of Separation and Record of Service), dated 1 November 1994 and 1 July 1999; and a reassignment order.

CONSIDERATION OF EVIDENCE: 

1. The FSM's military records show he was born on 28 January 1955.  On 15 March 1980, he and the applicant were married.

2.  On 1 December 1997, after having prior service in the U.S. Air Force (USAF), the U.S. Air Force Reserve (USAFR, separated in 1993), and the Indiana ARNG (INARNG), the FSM enlisted in INARNG in the rank of staff sergeant/E-6.

3.  On 6 August 1998, the applicant's Notification of Eligibility for Retired Pay at Age 60 (20-year letter) was issued.  The FSM's record does not include a 
20-year letter dated in 1992.

4.  On 1 July 1999, after completing 26 years, 6 months, and 14 days of creditable military service for Reserve retirement at age 60, the applicant was honorably discharged from the INARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve).

5.  There is no evidence of record or independent evidence which indicates the FSM ever completed a DD Form 1883 or a DD Form 2656 (SBP Election Change Certificate) electing to enroll in the RCSBP and/or that he elected "spouse only" coverage.

6.  During the processing of this case a staff member of the Board contacted INARNG officials to ascertain if the applicant completed an election for RCSBP coverage.  The INARNG official indicated that a search of the FSM's record did not include an RCSBP election.

7.  During the processing of this case a staff member of the Board contacted U.S. Army Human Resources Command-St. Louis (HRC-STL) officials to ascertain if the FSM completed an election for RCSBP coverage.  The HRC-STL official stated that a search of the FSM's record did not include an RCSBP election.

8.  On 23 March 2009, the FSM died at the age of 54.

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.  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.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the 20-year letter or wait until he or she applied for retired pay at age 60 and elect to participate in the standard SBP.

10.  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 be authorized RCSBP because the importance of completing the DD Form 1883 was never explained to the FSM was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, Soldiers who complete 20 or more qualifying years are issued a 20-year letter that informs them of their retirement eligibility.  The law in effect at the time required the Soldier to make an RCSBP election and return the enrollment form within 90 days of receipt.  If the election was not submitted within the 90-day period, the member deferred the opportunity to enroll in the program until he or she applied for retired pay at age 60.  If the member died before reaching age 60, the spouse was authorized no SBP benefits.

3.  The evidence of record confirms the FSM was notified by the ARNG in 1998 (20-year letter) that he was eligible for a Reserve retirement upon reaching age 60.  At that time he was required to submit an RCSBP election within 90 days.  If he failed to submit his election form, he would not be eligible to enroll in the SBP until he applied for retired pay at age 60 and his spouse would receive no SBP annuity if he died before reaching age 60.  Therefore, absent evidence to the contrary, it is presumed the FSM received the notification, was aware of the RCSBP enrollment requirement, and simply elected not to enroll in the RCSBP.

4.  The FSM failed to submit his DD Form 1883 within 90 days of receiving his 20-year letter.  As a result, given there is no evidence that the FSM intended to enroll in the RCSBP prior to reaching age 60, the applicant was not eligible to receive an SBP annuity based on the death of the FSM prior to reaching age 60.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  The evidence of record fails to include a 1992 20-year letter to which the applicant refers.  Given the FSM was separated from the USAFR in 1993, she is advised that she may contact USAFR officials to inquire if the FSM made an RCSPB at that time.

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)                                         AR20090008240



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ABCMR Record of Proceedings (cont)                                         AR20090008240



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