IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100016600 


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 she be awarded the annuity benefits of her deceased spouse, a former service member (FSM), under the Reserve Component Survivor Benefit Plan (RCSBP).

2.  She states she believes the FSM completed the required documentation for full coverage under the RCSBP in the time prescribed.  During the FSM's military service, there were various occasions when another Soldier's personnel documents were erroneously filed in the FSM's military personnel records jacket.  She states it is possible the missing DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) was misfiled in another Soldier's records.

3.  She contends that prior to the FSM's death, he believed his RCSBP was in force and would provide her with the immediate and appropriate compensation of his future retirement benefits.  Her husband was still in the "gray area" and did not receive a preretirement packet prior to his death; therefore, he did not have an opportunity to ensure all retirement elections were in place.

4.  She provides copies of the following documents in support of her request:

* marriage license
* death certificate
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 30 June 1992
* transmittal letter (TL) for 20-year letter, dated 2 July 1992
* Personnel Qualification Record (PQR) – Enlisted prepared on 31 January 2002
* Army National Guard (ARNG) Retirement Points History Statement – Application for Retirement Pay prepared on 7 April 2010
* Maryland ARNG (MDARNG) Orders 236-101, dated 24 August 2005
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* MDARNG Notification to U.S. Army Reserve Components Personnel and Administration Center (RCPAC) of Death of Retired Member, dated 12 April 2010
* letter from the U.S. Army Human Resources Command (HRC) Transition and Separations Branch, dated 29 April 2010
* DD Form 2656-7 (Verification for Survivor Annuity), dated 4 May 2010
* DD Form 93 (Record of Emergency Data), dated 27 January 2005
* SGLV Form 8286-E (Servicemembers Group Life Insurance (SGLI) Election and Certificate), dated 27 January 2005 
* Standard Form 1199A (Direct Deposit Sign-Up Form)
* Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* letter from the HRC Transition and Separations Branch, dated 11 May 2010

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 17 January 1952.  He enlisted in the ARNG on 13 November 1971 and his retirement year ending date was established as 12 November annually.  He married the applicant on 1 September 1973.

2.  The FSM qualified for nonregular retired pay on 13 November 1991 when he attained 20 qualifying years of service.  He was issued a 20-year letter on 30 June 1992 and was given a suspense date of 15 August 1992 to complete a DD Form 1883 and to return it to the MDARNG.

3.  The applicant provided a copy of a TL which showed Headquarters, State Area Command, acknowledged receipt of the FSM's 20-year letter on 2 July 1992.  This TL indicates the unit commander's responsibility to present the 20-year letter to the Soldier, to provide counseling on the RCSBP, and to submit the appropriate personnel transactions pertaining to the Soldier's election not later than 17 August 1992.

4.  A DD Form 1883 is not on file with the Defense Finance and Accounting Service (DFAS) office nor is one available for review by the Board.

5.  The applicant provided a copy of the FSM's PQR which was prepared on 31 January 2002.  The codes in this form are consistent with the information contained in the excerpt of transaction codes for the PQR.  The FSM's PQR shows the following information in section K (Retirement Data):

* item 3 (Survivor Benefit Option) - Y (none)
* item 4 (Survivor Benefit Election Coverage) - E (none)
* item 5 (Survivor Benefit Election Status) - Y (none)
* item 8 (Twenty-Year Certificate Status) - V (notification of eligibility for retired pay issued)

6.  The FSM's ARNG Retirement Points History Statement shows he served through a continuous series of reenlistments with the MDARNG.

7.  She provided a copy of Orders 236-101 which show the FSM was reassigned to the Retired Reserve on 30 September 2005.

8.  The FSM's NGB Form 22 shows he was honorably discharged from the MDARNG on 30 September 2005.  He completed a total of 33 years, 10 months, and 18 days of creditable service for pay.

9.  The death certificate she provided shows the FSM died on 2 April 2010 at 58 years of age.

10.  The applicant provided a copy of a Notification to RCPAC of Death of Retired Member, dated 12 April 2010, which showed she applied for survivor's annuity benefits.

11.  The applicant also provided a DD Form 93 which shows the FSM elected the "maximum" coverage in item 12a (SGLI) and item 12b (Insurance Companies/Policy Numbers) was left blank.

12.  The applicant provided a copy of an SGLV Form 8286-E which shows the FSM elected the maximum amount of coverage and named his spouse [the applicant] as principal beneficiary to receive a lump-sum payment.

13.  The applicant provided copies of two letters from the Transition and Separations Branch of HRC, dated 29 April 2010 and 11 May 2010, respectively.  The first letter required her to complete a DD Form 2656-7 in order to obtain the RCSBP annuity benefits from her late husband.  The second letter states there was no record on file which indicated the FSM elected to participate in the SBP.  As a result, her request for an annuity was denied.

14.  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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

DISCUSSION AND CONCLUSIONS:

1.  The FSM qualified for nonregular retired pay on 13 November 1991.  The available evidence shows the FSM was issued a 20-year letter on 30 June 1992 and was given a suspense date of 15 August 1992 to complete the DD Form 1883 and to return it to the MDARNG.

2.  Although she submitted evidence which shows the FSM chose full SGLI coverage and named her as sole beneficiary, this alone does not prove his intent to elect coverage under the RCSBP, as they are entirely different programs.

3.  In view of the facts of this case, there does not appear to be an error or an injustice.  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 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)                                         AR20100016600



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ABCMR Record of Proceedings (cont)                                         AR20100016600



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