BOARD DATE:	  13July 2010

		DOCKET NUMBER:  AR20090018099 


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 Reserve Component Survivor Benefit Plan (RCSBP) spouse-only coverage.

2.  The applicant states she should be paid the SBP annuity the FSM earned during his military service.

3.  The applicant provides the following documents in support of her request:

* 15 pages of Kaiser Permanente medical documents
* an authenticated copy of marriage record
* a death certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he was born on 29 March 1951.  On 25 February 1970, he enlisted in the Army National Guard (ARNG).  He continued to serve in an enlisted status through 24 February 1974.

2.  On 25 February 1974, the FSM was appointed a commissioned officer in the rank of second lieutenant in the ARNG.  The FSM and the applicant were married on 12 October 1974.

3.  His DA Form 2-1 (Personnel Qualification Record) shows the FSM was transferred from the ARNG to the U.S. Army Reserve on 14 June 1980.  On 22 January 1987, he was promoted to major.

4.  On 24 September 1993, the U.S. Army Reserve Personnel Center issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) to the FSM.  This notification informed the FSM that he had completed the required years of service necessary to qualify to receive retired pay at age 60 upon application.  Paragraph 4 of this notification informed the FSM that by law, he had to complete his initial DD Form 1883 (Survivor Benefit Plan Election Certificate) within 90 calendar days from the date of receipt of the 20-year letter and if he failed to make his election within 90 days, he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60.

5.  The 20-year letter further informed the FSM that if he did not elect coverage and died prior to reaching age 60, there would be no benefits for his spouse and that more detailed information concerning participating in the RCSBP and a blank DD Form 1883 were enclosed.

6.  There is no evidence in the FSM's military personnel records jacket, Defense Finance and Accounting Service record, or independent evidence which indicates the FSM ever completed a DD Form 1883 electing to enroll in the RCSBP.

7.  The FSM was transferred to the Retired Reserve on 4 December 1994.

8.  On 3 September 2008, the FSM died at the age of 57.  The death certificate shows he was married to the applicant at the time.

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 elect 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 else 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 is entitled to an RCSBP annuity based on the death of her husband 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 and offers them 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.  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 memorandum 
(20-year letter), which included a DD Form 1883, that he had become eligible for a Reserve retirement upon reaching age 60.  He was notified of the requirement for him to submit an RCSBP election within 90 days and that 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.  Although there is no evidence that the applicant was notified of the FSM's failure to enroll in the RCSBP, the law in effect at the time had no requirement for her to be notified that the FSM did not enroll in the RCSBP.  Further, the current law requiring spousal concurrence was not implemented until 1 January 2001.  As a result, the applicant not being notified of the FSM's failure to enroll was not a material error at the time because spousal concurrence was not required and the lack of notification to the applicant would not have affected the FSM's enrollment (non-enrollment) choice at the time.

5.  The FSM's failure to respond within 90 days of receiving his 20-year letter and RCSBP notification constituted an election not to participate in the RCSBP and neither spousal notification nor concurrence was required for a Reserve member to delay an RCSBP election until age 60 under the existing law at the time.  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.  Accordingly, the applicant has failed to meet her burden of proof and as a result is not entitled to the 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)                                         AR20090018099



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018099



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1