IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090008620 


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

2.  The applicant states, in effect, that the FSM was in the midst of a lengthy divorce proceeding at the time he received his 20-year letter, dated 30 January 1995, which 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 the FSM elected to decline RCSBP enrollment on a DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 28 March 1995.  The applicant further adds that she and the FSM were married on 11 October 2002 and she does not feel the FSM was properly informed about his ability to change his RCSBP election at that time.  The applicant states that the FSM had told both her and his father that she would receive benefits, and mentions the fact that the FSM had enrolled her in TRICARE Prime for medical care.  The applicant concludes that it was her understanding that she would be entitled to RCSBP benefits based upon the fact that she was the FSM's spouse and she was not aware of this problem until after the FSM's death.

3.  The applicant provides copies of the FSM's divorce documents; the FSM's
20-Year Letter; a DD Form 1883; a National Guard Bureau (NGB) Form 22 (NGB - Report of Separation and Record of Service) for the period ending 12 June 1997; their marriage certificate issued on 31 October 2002; a TRICARE Prime Enrollment Application and PCM [Primary Care Manager] Change Form, and the FSM’s death certificate in support of her request.
CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 25 July 1953 and he enlisted in the Regular Army (RA) for a period of 3 years on 10 October 1969.  The FSM's records also show he served in various staff and leadership positions throughout his active duty career as a Reserve Component officer in both the U.S. Army Reserve (USAR) and the Army National Guard (ARNG).

2.  The applicant provides documentation from the Superior Court of the State of California for the County of San Bernadino, which shows the FSM's marriage to his former wife, P---- C. C--- was dissolved, effective 29 October 1993.  These documents also show that following a cash settlement, the FSM retained all retirement benefits acquired through his military service and that they were free from claim or interest of his aforementioned former wife.

3.  On 30 January 1995, the Departments of the Army and Air Force, Office of the Adjutant General, California National Guard, Sacramento, CA, issued the FSM a letter, subject:  Notification of Eligibility for Retired Pay at Age 60.  This letter notified the FSM that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.  Enclosed with this letter was an SBP Benefit Plan Summary which informed 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 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.

4.  On 28 March 1995, the FSM completed a DD Form 1883.  He indicated that he was not married, he had no dependent children, and he elected not to participate in the RCSBP.

5.  The FSM resigned and he was honorably released from the California Army National Guard (CAARNG) on 12 June 1977 and he was transferred to the USAR Control Group (Standby).

6.  On 11 October 2002, the FSM married the applicant.

7.  On 12 February 2007, the FSM completed a TRICARE Prime Enrollment Application in order to enroll the applicant for medical coverage.

8.  On 22 February 2007, the USAR Human Resources Command, St. Louis, MO, published Orders C-02-705858, which released the FSM from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve, effective 23 February 2007.  The applicant's career culminated with his retirement in the rank/grade of chief warrant officer four (CW4)/W-4 based upon his completion of over 20 years of reserve duty.

9.  On 15 August 2008, the FSM died at the age of 55.

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.

11.  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.  However, if a person has eligible dependents in either category and chooses to decline coverage they are precluded from adding subsequent dependents except during Open Season Enrollment periods.

12.  The Defense Finance and Accounting Service (DFAS) 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…."

13.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted from 1 October 2005 through 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting 
on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive RCSBP benefits based on the death of her husband, an FSM, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, Reserve Component 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 had no eligible dependents at the time he made his election and declined to participate in the RCSBP

3.  By law, incident to a member’s marriage/remarriage, a member who has no dependent children and has not previously elected spouse coverage, has one year from the date of marriage to provide an annuity for his spouse by making such an SBP election.

4.  Although the FSM had two opportunities during which to enroll the applicant in the RCSBP, his record is devoid of any evidence and the applicant has failed to provide any evidence that the FSM attempted to do so either within one year following their marriage or during the SBP Open Enrollment period conducted from 1 October 2005 through 30 September 2006, as is required by law.

5.  The applicant has failed to provide any evidence supporting her contention that the FSM was not properly informed about the rules for electing SBP entitlements.  Therefore, in view of the foregoing, there is no basis for granting 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)                                         AR20090008620



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ABCMR Record of Proceedings (cont)                                         AR20090008620



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