IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013146 


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 husband, a deceased former service member (FSM), be corrected to show his correct marital status at the time he completed his DD Form 1883 (Survivor Benefit Plan Selection Certificate) and to show he elected to provide her an annuity under the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states she did not believe her husband understood how to properly complete his RCSBP election form.  She states he intentionally served over 20 years in the Georgia Army National Guard (GAARNG) to specifically earn a retirement at age 60 and an annuity for her in the event of his early death. She has always thought she would be able to draw his retirement on the anniversary of his 60th birthday.

3.  The applicant provides copies of:

* their Marriage License
* the FSM's 20-year letter
* the FSM's DD Form 1883 with Reserve Component Survivor Benefit Plan Concurrence Statement
* the FSM's Certificate of Death/State of Georgia
* the FSM's Army National Guard Current Annual Statement dated 
18 March 2010


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 enlisted in the GAARNG on 4 December 1976.  He had previously served in the United States Marine Corps (USMC) on active duty for 2 years and in the USMC Reserve for 42 months.

3.  The marriage license submitted by the applicant shows she and the FSM were married on 5 May 1972.

4.  The FSM's Military Personnel Records Jacket (MPRJ) contains a DD Form 93 (Record of Emergency Data), dated 17 June 1994.  This form lists the FSM's spouse as R__y, not the applicant, four sons, one stepson, and one stepdaughter.

5.  The FSM's MPRJ contains a DD Form 1121 (Application for Uniformed Services Identification Card, DEERS Enrollment), dated 13 September 1995, on which the FSM was applying for identification cards for his spouse, three children, and three stepchildren.  The spouse's name on this form is R__y, not the applicant.  The marital status date for the spouse shown is 10 April 1994 and a marriage certificate was used to verify this information. 

6.  The FSM's 20-year letter is dated 20 May 1996.  The letter indicates that it was prepared on 15 March 1996.  

7.  On 14 April 1996, the FSM completed a DD Form 1883.  The items on the form asking whether he is married or has any children are not checked yes or no. In the item asking which type of coverage the FSM desired he checked the block after "None."  In item 9c the FSM elected option A - elect to decline enrollment and choose at age 60 whether to start SBP participation.  The Reserve Component Survivor Benefit Plan Concurrence Statement with the DD Form 1883 was not completed or signed.
8.  On 1 June 1996, the FSM was transferred to the Retired Reserve.

9.  On 1 June 2006, the FSM died at the age of 54.  The FSM's death certificate indicates he was widowed.

10.  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.  Spousal notification was required only if the member elected to participate in the RCSBP for less than full spouse coverage.  Before the law was amended as noted below, 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.  

11.  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 applicant contends the FSM's record should be corrected to provide her an SBP annuity.

2.  There is no evidence of a divorce in the FSM's MPRJ.  However, his MPRJ does contain two official forms that indicate he updated his military records based on a marriage to someone other than the applicant on 10 April 1994.  Therefore, the evidence shows the applicant was not the FSM's wife at the time he received his 20-year letter.

3.  The FSM's 20-year letter was dated 20 May 1996, but was prepared on 
15 March 1996.  The FSM's election under RCSBP was made within the 90 day period of the preparation of his 20-year letter.  He did not check either yes or no under his marital status and whether or not he had children.  He clearly checked the block electing option A, elect to decline enrollment and choose at age 60 whether to start SBP participation.  Even if his failure to check all of the appropriate blocks deemed the form to be invalid, because his 20-year letter is dated prior to 1 January 2001, the election would have then defaulted to 
option A.

4.  Therefore, in view of the above, due to the FSM passing away prior to the age of 60, there is no SBP annuity.

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)                                         AR20100013146



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ABCMR Record of Proceedings (cont)                                         AR20100013146



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