IN THE CASE OF:
BOARD DATE: 18 March 2010
DOCKET NUMBER: AR20090013594
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 that she has been denied Survivor Benefit Plan (SBP) benefits because her husband died 12 days before his 60th birthday. She contends that he was diagnosed with cancer 4 months before his death and the doctor indicated that it was due to the FSM's exposure to Agent Orange. She indicates that she did not sign item 30 (Spouse) in section XI (SBP Spouse Concurrence) of the DD Form 2656 (Data for Payment of Retired Personnel).
3. The applicant provides letters from the Chief, Transition and Separations Branch, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, dated 8 October 2008 and 22 July 2008; revocation orders, dated 8 October 2008; a death certificate; a DD Form 2656; a letter from a Member of Congress, dated 23 July 2009; a DD Form 108 (Application for Retired Pay Benefits); and orders, dated 22 July 2008, in support of her application.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 6 September 1948. He was inducted into the Army of the United States on 27 May 1968 and he was released from active duty on 17 March 1970. He enlisted in the U.S. Army Reserve on 27 May 1970. He married the applicant on 18 September 1980.
2. On 18 December 1992, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). Paragraph 3 of this letter pertains to the RCSBP and the DD Form 1883 (Survivor Benefit Plan Election Certificate) and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. Records at HRC-St. Louis indicate the FSM did not execute a DD Form 1883.
3. The FSM's DD Form 2656, dated 1 January 2008, shows he was married. Section IX (Survivor Benefit Plan Election) of his DD Form 2656 is blank. Section XI (required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage) of this form is also blank.
4. On 25 August 2008, the FSM died at the age of 59.
5. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
6. 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, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Before the law was amended in October 2000, 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 applies for retired pay and elect to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A, decline enrollment and choose at age 60 whether to start SBP participation.
7. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000. Extensive publicity was given in various Army publications.
8. The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005-30 September 2006. It requires that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered. However, the FSM did not make an RCSBP election in 1992 or an SBP election on 1 January 2008. Even had he made an SBP spouse election, it would not have become effective until he actually reached age 60.
2. There is no evidence to show the FSM ever attempted to enroll in the RCSBP at any time. There is also no evidence to show he attempted to enroll during the 1 March 1999-29 February 2000 Open Season or the 1 October 2005-30 September 2006 Open Season.
3. Regrettably, there is no basis for granting the applicant's request.
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) AR20090013594
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20090013594
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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