IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100011212 


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, 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, in effect:

* It was the FSM's wish for her to be his SBP beneficiary
* The FSM would have turned 60 years of age on 21 August 2009
* DD Form 1883 (Survivor Benefit Plan Election Certificate) was signed and submitted
* She was the spouse of a service member who served 33 years in the Army and the U.S. Army Reserve (USAR) and sacrifices were made mutually
* They were married for 37 years
* The FSM served in Vietnam and was awarded the Bronze Star Medal and Air Medal

3.  The applicant provides:

* Letters, dated 29 January 2010, 3 November 2009, 15 September 2009, 20 March 2009, and 2 March 2009 from Members of Congress
* Undated letter from Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, MO to a Member of Congress
* FSM's Notification of Eligibility for Retired Pay at Age 60
* DD Form 1883, dated 5 May 2002
* FSM's U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points
* Marriage Register
* FSM's death certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
* Direct deposit slip
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)    

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 21 August 1949.  He married the applicant on 
20 November 1969.  Having prior active service in the Regular Army, the FSM enlisted in the U.S. Army Reserve (USAR) on 19 May 1971.  

3.  On 4 January 1992, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  Paragraph 3 of this letter pertains to the RCSBP and the DD Form 1883 and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60.  This form also states "If you do not elect coverage and should die before age 60, there will be no benefits for your survivors."  Records at HRC-St. Louis indicate the FSM did not execute a DD Form 1883.

4.  The FSM was assigned to the USAR Control Group (Reinforcement) on 
30 November 2002.  He was transferred to the Retired Reserve on 28 October 2003.

5.  On 4 February 2007, the FSM died at the age of 57.


6.  In support of her claim, the applicant provided a DD Form 1883 which shows the FSM elected spouse only coverage, full base amount.  The FSM signed this form on what appears to be 5 May 2002 and the applicant signed it on 24 August 2009.

7.  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.

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 member's 60th birthday, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Before the law was amended in October 2000, 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, decline enrollment and choose at age 60 whether to start SBP participation.

9.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000.  Extensive publicity was given in various Army publications.

10.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005-30 September 2006.  It requires that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the FSM did not make an RCSBP election in 1992.    

2.  The law requires the RCSBP election to be made within 90 days of receiving the 20-year letter.  There was no Open Season in 2002.  There is no evidence to show the FSM attempted to enroll during the 1 October 2005-30 September 2006 Open Season.  Regrettably, the FSM did not complete the DD Form 1883 in the required time frame.
BOARD VOTE:

___X____  __X     __  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed it would be an injustice to deny the applicant SBP benefits.  The Board believed it was the FSM's intent to provide those benefits as evidenced by his 2002 signature on the election form.  The Army should not simply stand by its "Open Season" as the only time for the FSM to elect coverage.  The Army has institutionally corrected this problem for current personnel, but the prior system allowed an injustice to be committed to the FSM's widow.  SBP premiums due as a result of this correction will have to be paid.

2.  Therefore, the Board determined that the evidence presented was sufficient to warrant a recommendation for full relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing the FSM elected to participate in the RCSBP for spouse coverage, full base amount, option C on 1 March 1999 during an Open Season, and that his election was received and processed by the appropriate office in a timely manner; and

     b.  paying to the applicant the SBP annuity retroactive to 5 February 2007, the date after the FSM's death.



      _______ _   XXX____   ___
               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)                                         AR20100011212





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ABCMR Record of Proceedings (cont)                                         AR20100011212



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