IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100008879 


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 husband, a former service member (FSM), be corrected to show he made an election under the Survivor Benefit Plan (SBP) to provide her an annuity upon his death.

2.  The applicant states the FSM received his 20-year letter after he retired and he never received proper counseling on making an SBP election because he would have elected to provide her an annuity if he had.  She continues by stating that she knows this because he knew about converting SGLI (Serviceman’s Group Life Insurance) to VGLI (Veterans Group Life Insurance) and the high costs associated with that and he chose to provide that, so he surely would have made an SBP election if he had known.

3.  The applicant provides a copy of the: 

* FSM’s 20 year letter
* FSM's retirement order
* FSM’s National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* FSM’s Army National Guard Retirement Points History Statement
* FSM’s death certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 21 May 1960.  On 6 May 2000, while serving in the rank of sergeant in the Florida Army National Guard (FLARNG), the FSM submitted a request on the expiration of his term of service (ETS) to be transferred to the United States Army Reserve (USAR) Control Group (Retired Reserve).

2.  On 7 May 2000, the FSM's commander submitted a memorandum to the Florida Department of Military Affairs verifying the FSM had 20 years of service for retirement purposes and requesting that he be placed on the Retired List effective 7 May 2000.  He also requested that the FSM’s SBP packet be completed and forwarded as soon as possible.

3.  On 13 July 2000, orders were published by the Office of the Adjutant General, FLARNG discharging the FSM from the FLARNG and transferring him to the USAR Control Group (Retired) effective 7 May 2000.

4.  Also on 13 July 2000, the Office of the Adjutant General, FLARNG dispatched the FSM his 20-year letter, an SBP Summary, and a copy of ARPERCEN Pamphlet 135-2 (Handbook on Retirement Services for Army Reserve Component Personnel and their Families).

5.  On 17 July 2000, a memorandum was dispatched to the FSM advising him his retirement had been approved and informing him that he was still eligible to participate in the SGLI Program.  He was provided the form to apply and a telephone number to contact at the FLARNG.

6.  On 13 December 2008, the FSM passed away at his home in Florida at the age of 48.

7.  A review of the available records fails to show the FSM ever made an SBP election.  Furthermore, telephonic contact with officials at the Defense Finance and Accounting Service (DFAS) revealed that agency has no record of having ever received an SBP election from the FSM.

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

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 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 member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  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.

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 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 evidence of record shows that on 7 May 2000 the FSM’s commander forwarded his request for transfer to the Retired Reserve and specifically requested that the FLARNG Department of Military Affairs forward the FSM’s SBP packet as soon as possible

2.  At the time the FSM’s 20-year letter were dispatched to him on 13 July 2000, an SBP Summary and Retirement Handbook was also dispatched as enclosures.  On 17 July 2000, he was provided the forms necessary to continue his participation in the SGLI and a contact phone number for transition assistance.

3.  Inasmuch as an election option form (DD Form 1883) cannot be found, it must be presumed that the FSM did not submit his election and instead elected to wait until he reached age 60 to make an election, which was the default at the time when individuals did not make their election within 90 days of receiving their    20-year letter.  Unfortunately, the FSM did not live until age 60 to make such an election.

4.  The evidence of record suggests that the FSM was provided the information in the form of an SBP packet at the time he received his 20-year letter and he subsequently received additional information on other programs as well as a phone contact number to request assistance if needed.  Therefore, in the absence of evidence to show otherwise, it must be presumed that the applicant understood his entitlements under the SBP and elected not to make an election until he reached age 60.

5.  The applicant contends that it is reasonable to presume that had the FSM known he was required to make an SBP election he would have made an election that would have left her an annuity because he did so with his SGLI conversion.  However, there is insufficient evidence to make the presumption that he was unaware of his entitlements under the SBP and would have elected option B or C instead.  

6.  Therefore, in the absence of more conclusive evidence to show he never received his SBP packet from the FLARNG as indicated on his 20-year letter, there appears to be no basis to grant relief in this case.

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)                                         AR20100008879



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ABCMR Record of Proceedings (cont)                                         AR20100008879



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