IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100012089 


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, she should be afforded the same RCSBP and retirement benefits as if the FSM had chosen option C (immediate annuity).  The FSM failed to inform her of the RCSBP/SBP enrollment opportunity.  He was issued his 20-year letter and RCSBP enrollment packet in August 1995 and again in February 1996 due to an improper address.  He failed to enroll in the RCSBP/SBP which resulted in an automatic deferred enrollment.  His next available enrollment would have been at age 60; however, he did not live to be 60 years old and now there are no RCSBP/SBP or retirement benefits for her.

3.  In a letter, dated 19 March 2010, the applicant states soon after the FSM's death she discovered she would not be entitled to survivor benefits or retirement benefits because the FSM failed to enroll in the RCSBP.  The FSM failed to inform anyone of his RCSBP enrollment opportunity.  She understands there were address challenges with the FSM's 20-year letter.  The initial letter went to Raymond, Georgia and they lived in Sharpsburg, Georgia.  He received the second mailing which was addressed correctly to their home in Newman, Georgia but she never saw the 20-year letter.  The FSM always told her and she truly believed that the Army would take care of her should anything happen to him.

4.  The applicant states due to the FSM's mandatory removal date he was involuntarily separated from the Army in 2003.  While he was on active duty, the FSM developed medical problems with his feet and tingling in the arm.  Six months after he was released from active duty, he was diagnosed with chronic inflammatory demyelinating polyneuropathy (CIDP), an auto immune disease that attacks the myelin sheath that covers the nerves.  He had an aggressive case of CIDP and he endured all of the available treatments but none of them worked.   

5.  The applicant states while researching the RCSBP she learned that in January 2001 the law changed, bringing the RCSBP up to the standards of the SBP.  Married members must provide written spousal concurrence in order to elect the various SBP options.  Had the FSM received his 20-year letter after January 2001, he would have had to provide written approval from her electing survivor benefit options or she would have been with him at the Transition Point signing for the option that would protect their family.  The survivor benefit, immediate annuity upon death of Soldier, is now the default choice and not what it was when the FSM received his 20-year letter.  Clearly, the law was changed for a reason and to protect Army families.    

6.  The applicant further states she served alongside her husband in the Army for 30 years.  His mandatory removal date should have been extended, allowing him to retire with 20 years of Active Federal service and immediately receiving his retirement benefits eight years ago or a medical retirement.  Now, in her greatest time of need, she is being told the Army is turning its back on her completely.  Without the FSM's retirement benefits she will be without an income and without health insurance.  In early December 2009, the FSM received and completed documentation pertaining to his retired pay and he chose the SBP option of paying an immediate annuity upon his death.  However, she is told this election would not go into effect until he turned 60 years old.    

7.  The applicant provides:

* Document pertaining to retiree benefits
* Notification of Eligibility for Retired Pay at Age 60
* Two letters from physicians
* Application for marriage license
* FSM's death certificate    

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 21 November 1950.  He was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 6 January 1973.  He married the applicant on 3 March 1973.  He was ordered to active duty in an Active Guard Reserve status on 8 February 1988.  

2.  On 25 August 1995, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  Paragraph 4 of this letter pertains to the RCSBP and the DD Form 1883 (SBP Election Certificate) 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 the Human Resources Command, St. Louis, Missouri indicate the FSM did not execute a DD Form 1883.

3.  On 30 January 2003, the FSM was released from active duty in the rank of colonel.  On 1 February 2003, he was released from the USAR Control Group (Reinforcement) for completion of maximum authorized years of service and assigned to the Retired Reserve.

4.  On 18 December 2009, the FSM died at the age of 59.

5.  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.

6.  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.

7.  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.

8.  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 1995.    

2.  The law (at the time) required the RCSBP election to be made within 90 days of receiving the 20-year letter or the opportunity to elect coverage was deferred until age sixty.  The applicant's husband made no election and there is no evidence to show he attempted to enroll during two subsequent Open Seasons.  Regrettably, the FSM did not complete the DD Form 1883 in the required time frame and there is no basis in equity for relief.

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)                                         AR20100012089



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ABCMR Record of Proceedings (cont)                                         AR20100012089



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