DOCKET NUMBER:  AR20100013115 


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 entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her husband, a former service member (FSM).

2.  The applicant states the FSM was in the Army National Guard (ARNG) at the time of his death and had been considering retirement but wanted to get his records in order first.

3.  The applicant provides:

* A self-authored statement
* A statement of support
* The FSM's ARNG Notification of Eligibility for Retirement Pay at Age 60
* Two of the FSM's ARNG retirement points history statement
* Two SBP calculations
* Copies of four memoranda
* A certificate of death

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's records show he was born on 2 September 1952 and enlisted in the U.S. Navy Reserve (USNR) on 16 September 1970.  He was honorably released from the USNR on 28 June 1971.  He subsequently enlisted in the Regular Army on 29 June 1971, was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman), and was honorably released from active duty on 1 April 1974.

3.  He was married on 17 May 1974.  He served through multiple extensions or reenlistments in various components of the Armed Forces.  On 19 February 1993, he enlisted in the Washington ARNG (WAARNG) and attained the rank of staff sergeant (SSG).  

4.  On 10 September 1999, by memorandum, WAARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  Enclosed with this letter was a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) which notified the FSM that he was entitled to participate in the RCSBP and that "by law" he had only 90 calendar days from the date he received this letter to submit his SBP Election Certificate.    If he did not elect coverage, he would not be entitled to survivor benefit coverage until he applies for retired pay at age 60, and should he die before age 60, his survivor would not be entitled to benefits.  If he did not submit his election as required, his election would be determined by law.
 
6.  On 17 December 1999, WAARNG issued a memorandum, through his chain of command to his company commander, stating he (the FSM) was delinquent in electing RCSBP coverage.  It stated he was now faced with a decision to elect/decline RCSBP coverage under the open enrollment period.  

7.  On 26 June 2000, the FSM died at the age of 47, while assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 303rd Armor, WAARNG.
8.  His records contain a Memorandum for Record, dated 20 October 2000, wherein the readiness noncommissioned officer for HHC, 1st Battalion, 303rd Armor, states the FSM was prior service, the highest rank held was incorrect on the FSM's retirement points history statement, and he counseled the FSM on many occasions that the rank could be corrected at a later date but the FSM needed to sign his SBP to set his affairs in order.  The retirement packet went past the suspense date and was sent forward by the state without the DD Form 1883.

9.  On 14 July 2005, the U.S. Army Human Resources Command, St Louis, denied the applicant's request for an RCSBP annuity and stated the FSM's records showed he never enrolled in the RCSBP.

10.  In a self-authored statement, the applicant states, in effect:

* Her husband was in the ARNG at the time of his death and had seriously considered retirement from the military in 2000
* She recalled him saying his records were not in order and he was reluctant to sign anything for retirement until his rank and pay were corrected but he died prior to it being taken care of
* If he had signed the DD Form 1883 showing E6 rather than O3, the pay would have been significantly less
* Her husband wanted to elect SBP coverage but he did not want to sign until his rank was corrected

11.  In a statement of support, dated 25 March 2010, a master sergeant from the Retirement Services Office, WAARNG, stated, in effect, it is apparent the FSM was seriously considering the SBP election for his spouse but was ensuring his record was correct in order to make a sound judgement.

12.  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.  At the time, 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 applied for retired pay and elected to participate in the standard SBP.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive RCSBP benefits based on the death of her husband was carefully considered.  

2.  Although the FSM's highest grade held may have been incorrect when he was issued his 20-year letter, this does not impact the SBP election.

3.  By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within
90 days of receipt.  The FSM's records indicate he failed to make an election. 

4.  The FSM, by failing to make an election, effectively deferred his election to age 60.  Therefore, there is no basis to grant the requested 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)                                         AR20100013115



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ABCMR Record of Proceedings (cont)                                         AR20100013115



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