IN THE CASE OF:
BOARD DATE: 11 May 2010
DOCKET NUMBER: AR20090017917
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, the spouse of a former service member (FSM), requests correction of the FSM's records to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage within 90 calendar days of receiving his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The applicant further requests correction of the FSM's records to show he elected to participate in the SBP within 1 year of his marriage to her and that she be entitled to receive an SBP annuity.
2. The applicant states the FSM did not execute an SBP election at the time of receiving his 20-Year Letter. The FSM was not married to the applicant when he reached 20 years of qualifying service for retired pay.
3. The applicant provides, in support of her application, copies of the applicant's 20-Year Letter; Divorce Decree, dated 31 January 2000; Marriage License/Certificate, dated 12 February 2007; Death Certificate; ARPC
Form 249-E (Chronological Statement of Retirement Points; DD Form 2656-7 (Verification fro Survivor Annuity), dated 8 July 2009; Standard Form 1199A (Direct Deposit Sign Up Form); and W-4P (Withholding Certificate for Pension or Annuity Payments).
CONSIDERATION OF EVIDENCE:
1. The FSM was born 4 February 1952.
2. On 24 October 1972, the FSM enlisted in the Regular Army. He was discharged on 22 September 1980. Five days later he enlisted in the United States Army Reserve (USAR) and served in the USAR through 29 September 2008. He attained the rank of command sergeant major, pay grade E-9, and completed 34 years, 11 months and 5 days of qualifying service for a non-regular retirement.
3. The FSM married his first wife on 18 May 1979.
4. The FSM's 20-Year Letter, dated 30 October 1996, informed him that he had 90 calendar days from the date of the letter in which to submit his RCSBP election. He was also informed that if he failed to submit an election within this 90 day period, he would not be entitled to SBP coverage until he applied for retired pay at age 60. If he died prior to reaching age 60, his survivors would not be entitled to benefits. He apparently did not make an RCSBP election.
5. The FSM divorced his first wife on 31 January 2000. On 12 February 2007, the FSM married the applicant. On 21 May 2009, the FSM died at 57 years of age.
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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If the member dies before reaching age 60, premiums are deducted from the annuity.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that she should be entitled to an RCSBP annuity.
2. There is no available evidence showing the FSM submitted an RCSBP election within the 90 calendar days of receiving his 20-Year Letter. Because he did not make an election when he had an eligible spouse, the next opportunity he had for enrolling in the SBP was when he turned age 60. He could not enroll within 1 year of his marriage to the applicant. However, he died prior to reaching his 60th birthday and attaining eligibility to apply for retired pay and to submit an SBP election.
3. In view of the above, the applicant's request for an SBP annuity should be denied.
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) AR20090017917
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ABCMR Record of Proceedings (cont) AR20090017917
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