IN THE CASE OF:
BOARD DATE: 26 August 2010
DOCKET NUMBER: AR20100007961
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 to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
2. The applicant states they moved to South Carolina from Tennessee and the Army Reserve did not have their new address; therefore, the FSM could not fill out the proper RCSBP paperwork.
3. The applicant provides copies of the FSM's:
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 9 March 1972
* NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) with an effective date of 1 March 1998
* Orders assigning the FSM to the U.S. Army Reserve (USAR) Control Group (Retired Reserve)
* certificate of death from the state of South Carolina
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 1 March 1998, the FSM was discharged from the Tennessee Army National Guard (TNARNG) and transferred to the Retired Reserve. He had served 7 years,
3 months, and 16 days in the TNARNG. He had 17 years, 9 months, and
13 days of prior Reserve component service and 1 year, 7 months, and 7 days of active service in the Army of the United States.
3. Based on the FSM's history of service he would have been notified of his eligibility for retired pay at age 60 (known as a 20-year letter) by the TNARNG. A copy of this 20-year letter is not available for review.
4. The FSM died on 22 September 2003 at age 53.
5. There is no evidence the FSM ever made an election concerning RCSBP.
6. A letter, dated 21 December 2009, from the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) to the applicant's Congressional representative stated the FSM was issued his 20-year letter and mailed an RCSBP package on 19 November 1996. He was to complete the packet and return it to the TNARNG. HRC-STL stated they contacted the TNARNG and they indicated that after a search of the FSM's records it was determined he did not submit an RCSBP election form.
7. 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 death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
8. At the time, a member must have made the election within 90 days of receiving their 20-year letter or else wait until he or she applied for retired pay 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends her deceased spouse's record should be corrected to show he elected to participate in the RCSBP for spouse coverage. She contends they did not receive the proper paperwork because they had moved to SC.
2. HRC-STL stated the FSM was issued his 20-year letter and mailed an RCSBP package on 19 November 1996. The FSM then had 90 days to make his election under the RCSBP. There is no evidence showing when they moved to SC. Further, it was the FSM's responsibility to ensure his contact information remained current.
3. There is no record of the FSM having completed an RCSBP election form. Therefore, based on the law in effect at the time, his failure to elect an option resulted in a default election of option A, decline enrollment and choose at age 60 whether to start SBP participation. Unfortunately, he passed away before age 60. At the time of receiving his 20-year letter spousal concurrence was not required for him to delay making an election until age 60.
4. Regrettably, there is insufficient evidence which would warrant granting 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) AR20100007961
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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