BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100025987 


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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the  Reserve Components Survivor Benefit Plan (RCSBP).

2.  The applicant states that the FSM's RCSBP election should be changed to cover her up to the birth of their son on 17 April 2008 and then changed to cover her and the child under Option C for an immediate annuity based on full retirement pay.  Additionally she states:

   a.  The Rhode Island Army National Guard (RIARNG) could neither find a copy of a Notification of Eligibility for Retired Pay at Age 60 [a 20-Year Letter], nor verify that he had ever been offered a briefing about RCSBP ? therefore, he could not have made an informed decision;

   b.  Both the applicant and the FSM attended briefings concomitant with the beginning and ending of his mobilization ? neither of them ever received a briefing about RCSBP ? today they would be automatically enrolled in Option C; and 
   
   c.  Five months after the birth of their son they became aware of the FSM's cancer ? from then until his death all their energies were focused upon treating his illness ? only in April 2010, when she contacted the RIARNG Transition Assistance Advisor, did she become aware of the RCSBP.
   


3.  The applicant provides copies of:

* their 5 May 2002 marriage certificate
* their son's 17 April 2008 birth certificate
* the FSM's 25 May 2010 death certificate
* the FSM's 1 November 2003 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* orders transferring the FSM to the Retired Reserve, effective 1 November 2003
* a letter from the RIARNG Transition Assistance Advisor stating they have no record that the FSM ever received or was offered a briefing on the RCSBP

CONSIDERATION OF EVIDENCE:

1.  A Notification of Eligibility for Retired Pay at Age 60 [a 20-Year Letter], dated 26 April 1997, informed the FSM he was qualified for retired pay at age 60.  This form was located on his record in the integrated Personnel Records Management System (iPERMS).  This form also indicated that a DD Form 1883 (Survivor Benefit Plan Election Certificate) was attached.

2.  The FSM and the applicant were married on 5 May 2002.  

3.  He was mobilized in support of Operation Enduring Freedom [Afghanistan] from 7 February to 10 July 2003.  He retired from the ARNG and was transferred to the Retired Reserve on 1 November 2003.  He had 26 years of service and was 44 years old.

4.  Their son was born on 17 April 2008.

5.  The FSM died on 25 May 2010.  He was approximately 50 years and 9 months old.

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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, an election had to be made within 90 days of receiving the 20-year letter or coverage defaulted to option A.
7.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year [EMPHASIS ADDED] after the date on which that person marries or acquires that dependent child.

8.  The National Defense Authorization Act (NDAA) for Fiscal Year 2005 established an SBP Open Enrollment period to be conducted 1 October 2005 to 30 September 2006.  Extensive publicity was given in Army Echoes, the authorized Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.

	a.  Army Echoes, Issue 1, January - April 2005, first alerted retirees that an SBP Open Enrollment period would run from 1 October 2005 - 30 September 2006.

	b.  Army Echoes, Issue 3, September - December 2005, also alerted retirees that the retiree who enrolls in the SBP during the Open Enrollment period must pay monthly premiums starting on the date of enrollment and a one-time buy-in enrollment premium.  It provided an internet reference that would aid retirees in calculating their cost.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be permitted to enroll in the SBP because they were not briefed about the RCSBP provisions.  

2.  The evidence of record shows the FSM received his 20-year letter in 1997.  He was still with his ARNG unit at the time.  If he was not sure how to complete the DD Form 1883, he had a responsibility to inquire about it in a timely manner.  It appears he did not do so.

3.  The FSM and the applicant were married on 5 May 2002.  He retired from the ARNG and was transferred to the Retired Reserve on 1 November 2003.

4.  Notwithstanding the fact that she maintains that neither of them ever had a briefing about the RCSBP, the information, including the fact that they had only one year in which to make an election after they married, was readily available.
5.  Unfortunately, there is no basis for granting the applicant's 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)                                         AR20100025987





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ABCMR Record of Proceedings (cont)                                         AR20100025987



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