IN THE CASE OF:
BOARD DATE: 25 May 2010
DOCKET NUMBER: AR20090019831
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 late husband, a deceased former service member (FSM), be corrected to show he elected immediate annuity Reserve Component Survivors Benefit Plan (RCSBP) coverage.
2. The applicant states her husband meant for her to have all the benefits due to her as a military spouse of 27 years. She adds that she was never informed that she would not receive SBP.
3. The applicant provides her husband's certificate of death, their marriage license, their certificate of marriage, an affidavit from her in which she attests she had been married to the FSM since their marriage in 1983, and the FSM's retirement point summary.
CONSIDERATION OF EVIDENCE:
1. The FSM's military records show that he enlisted in the U.S. Army Reserve (USAR) for assignment to a troop program unit on 6 March 1971.
2. He served in the Air Force from 2 September 1977 to 9 November 1978.
3. He then had a break in service until his enlistment in the Air National Guard on 9 June 1979.
4. He served continuously in the Air National Guard until his enlistment in the Army National Guard on 29 October 1996.
5. On 7 April 1997, the FSM was issued a 20-year letter certifying his eligibility for retired pay at age 60. He was 45 years old at that time. As an enclosure to this letter was an SBP summary.
6. On 6 June 2009, the FSM died. He was 57 years old at that time.
7. In the processing of this case the Board's staff contacted the Defense Finance and Accounting Service (DFAS). DFAS stated that there is no evidence the FSM submitted an RCSBP election. This failure to make an election resulted in the default election of option A, which is to decline enrollment and choose at age 60 whether to start SBP participation.
8. 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. Spousal notification was required only if the member elected to participate in the RCSBP for less than full spouse coverage. Before the law was amended as noted below, 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.
9. 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 law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C.
DISCUSSION AND CONCLUSIONS:
1. The applicant was the FSM's wife for 27 years.
2. Unfortunately, at the time the FSM was issued his 20-year letter, the law stated that if a Reservist failed to make an election within 90 days of being issued a 20-year letter, the SBP election defaulted to option A, to decline enrolment and choose at age 60 whether to participate in the SBP. Since he deferred his SBP election, spousal notification was not required.
3. Since the FSM did not elect SBP, he had no SBP beneficiaries.
4. Many Reservists decline RCSBP enrollment until age 60. This is a financial decision since the Reservist will have to pay SBP premiums to cover the period a beneficiary would have been protected by the RCSBP when the Reservist turns age 60 and starts collecting retired pay. Unfortunately, deferring immediate SBP coverage means that if the Reservist dies prior to reaching age 60, his wife does not receive the SBP annuity.
5. While it is regrettable that the FSM did not elect RCSBP, the fact remains that he did not. As such, 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.
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