IN THE CASE OF:
BOARD DATE: 15 June 2010
DOCKET NUMBER: AR20090018344
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 that the record of her late husband, a deceased former service member (FSM), be corrected to show that he elected to participate in the Reserve Components Survivor Benefit Plan (RCSBP).
2. The applicant states that the deceased FSM frequently talked of enrolling in the SBP when he reached age 59.
3. The applicant provides copies of:
* FSM's death certificate and their 1972 marriage certificate
* DD Form 1300 (Report of Casualty)
* DD Form 2556-7 (Verification of Survivor Annuity)
* SGLV 8283 (Servicemember's Group Life Insurance Claim for Death Benefits)
* W-4P (Withholding Statement)
* Army National Guard (ARNG) Current Annual [Points] Statement, dated 3 April 2007, and Supplemental Detailed Report
* ARNG Current Annual [Points] Statement, dated 22 September 2009 with Supplemental Detailed Report
* 30 June 2009 letter from the FSM's attending physician
* their driver's licenses and her Uniformed Services Identification card
* Alabama Supplemental Medical Certificate, the FSM's 11 April 1999 Notification of Eligibility for Retired Pay at Age 60 [his 20-year letter]
* 9 September 2009 letter to the applicant explaining that the FSM had not enrolled in the RCSBP, with attached explanation of coverage and costs
* two affidavits one from his ARNG supervisor, a colonel, and another from a fellow worker, a master sergeant.
CONSIDERATION OF EVIDENCE:
1. The FSM was a dual status-Federal Technician civilian employee and a drilling ARNG Soldier.
2. He had entered the Service in January 1971 and progressed to the rank of master sergeant. He had completed 29 years of qualifying service for pay at age 60.
3. The FSM had been issued an 11 April 1999 20-year letter. There is no evidence to show he enrolled in the RCSBP at that time.
4. On 15 May 2009, the applicant died as the result of injuries sustained as the result of a motor vehicle accident. He would have been 59 years old on 30 November 2009.
5. Public Law 95-297, 30 September, 1978 established the RCSBP to offer survivor protection during gray area service (between the time a member qualifies for retirement but not yet age 60 and in receipt of retired pay). It provides, in effect, that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The election made by the member was irrevocable (unless an open season was announced). Enrollment for Reservists is required within 90 days of receiving their notice of eligibility (20-year letter). Option A, if elected, was at no cost to the member since it provided no coverage and no annuity was paid. It allowed the member to attain age 60 before the member elected the rate of SBP he or she desired. Option B, if selected, allowed the beneficiary to receive an annuity if the service member died before reaching age 60, but delayed payment until the members 60th birthday and is less expensive that Option C, the most expensive option that provides an immediate annuity if the member dies before age 60.
6. The applicant submitted two effectively identical affidavits. They describe how the FSM frequently discussed his intention to enroll in the SBP.
DISCUSSION AND CONCLUSIONS:
1. The applicant states that the deceased FSM frequently talked of enrolling in the SBP when he reached age 59.
2. The application itself and the affidavits clearly show that the FSM intended to enroll in the SBP when he applied for retired pay at age 60. Furthermore, the spouse was aware of and apparently approved of this decision.
3. There is no evidence that any effort was made to reverse that original decision.
4. Absent an election of immediate RCSBP coverage when the FSM received his 20-year letter, the applicant is not entitled to relief. Even had he completed the paperwork to enroll in SBP when he retired at age 60, his death at age 58 rendered he ineligible for an SBP annuity
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) AR20090018344
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