IN THE CASE OF:	  

		BOARD DATE:	    20 July 2010

		DOCKET NUMBER:  AR20100000361 


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 records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) with spouse coverage.

2.  The applicant states that her husband had 31 years of service and over 26 creditable years for retirement.  Prior to his death, he checked that all the necessary paperwork was completed to ensure she would be taken care of; however, she has been denied the SBP annuity.

3.  The applicant provides copies of their marriage certificate; the FSM's death certificate; the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); the FSM's Notification of Eligibility for Retired Pay at Age 60; the FSM's Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points); and a memorandum, dated 21 April 2009.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Army of the United States on 14 January 1971.  Records show he was born in February 1949.

2.  The FSM was appointed as a Reserve commissioned officer in the Army National Guard of the United States on 6 June 1976.  He was promoted to lieutenant colonel/pay grade O-5 on 4 September 1998.

3.  On 16 April 1997, the U.S. Army Reserve Personnel Center Retired Activities Division notified the FSM that his eligibility for retired pay had been established upon attaining age 60.  He was also notified of his entitlement to participate in the Reserve Component SBP (RCSBP) established by Public Law 95-397.  The memorandum states "[t]his plan enables you to provide an annuity for your spouse, and other eligible beneficiaries.  BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD FORM 1883 [SURVIVOR BENEFIT PLAN ELECTION].  IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60.  IF YOU DO NOT ELECT COVERAGE AND SHOULD DIE BEFORE AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO BENEFITS."

4.  A DD Form 1300 (Report of Casualty) shows the FSM died on 14 September 2002.

5.  An ARPC Form 249-E shows that at the time of his death the FSM had completed 26 years, 8 months, and 1 day of qualifying service for retirement.

6.  There is no evidence in the FSM's military personnel records that shows he submitted an application to participate in the RCSBP or that he made an RCSBP election.

7.  In support of her application, the applicant provides the following documents:

	a.  State of New Jersey Certificate of Marriage that shows she and the FSM married on 30 May 1971;

	b.  State of New Jersey Certificate of Death that shows the FSM died on 14 September 2002 at the age of 53 and that he was married to the applicant at the time of his death; and

	c.  U.S. Army Human Resources Command, St. Louis, MO, memorandum, dated 21 April 2009, that shows the Chief, The Adjutant General Directorate - West, responded to U.S. Representative S____ G____'s inquiry on behalf of the applicant.  Congressman G____ was informed that the FSM was mailed his RCSBP packet on 16 April 1997.  The FSM was to return the RCSBP packet with his election within 90 calendar days; however, he did not return the election form.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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.

	a.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies before age 60, but delay payment of it until the date of the member's 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon the service member's death if before age 60.  A member must make 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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

	b.  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 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 contends that the records of her deceased spouse should be corrected to show that he enrolled in the RCSBP with spouse coverage.

2.  The evidence of record shows that the FSM received his Notification of Eligibility for Retired Pay at Age 60 with the accompanying SBP forms in 1997.

3.  There is no evidence the FSM made an RCSBP election within 90 days of receipt of this notification or at any time subsequent to the notification.

4.  Unfortunately, spousal consent was not required at the time and failure to make an election resulted in the default election of option A (i.e., elect to decline enrollment and choose at age 60 whether to start standard SBP participation).

5.  The FSM died before reaching age 60 when he could have elected to enroll in the standard SBP.

6.  Regrettably, there is insufficient evidence to grant the relief requested.

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)                                         AR20100000361



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)