IN THE CASE OF:
BOARD DATE: 7 June 2011
DOCKET NUMBER: AR20100026080
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, the widow of the deceased former service member (FSM), requests, in effect, correction of the FSM's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and children coverage and that she be paid the annuity.
2. She states she and the deceased FSM had been married since 2003 and the FSM had no knowledge of anything being required of him to receive retirement benefits. She offers that the FSM knew he was to receive retirement benefits when he retired and thought that his benefits would go to his spouse or children. She adds that now he is gone after serving his country, she would hope the country would honor his promise to take care of his family through his retirement benefits.
3. She provides the following:
* Self-authored statement
* Certificate of Death
* Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 5 October 2000
* Certificate of Marriage
* Applicant's and children's certificates of birth
* Divorce Decree
CONSIDERATION OF EVIDENCE:
1. On 1 July 1975, the FSM enlisted in the Regular Army (RA) and remained in the RA until he was honorably discharged on 2 February 1984. He enlisted in the U.S. Army Reserve (USAR) on 4 September 1988. His date of birth was listed as 20 January 1957.
2. On 5 October 2000, the FSM received his 20-Year letter. Paragraph 3 of his 20-Year letter stated that he was entitled to participate in the RCSBP and by law he had 90 calendar days, from the date he received the memorandum, to submit a DD Form 1883 (Survivor Benefit Plan Election Certificate). The memorandum further stated that if he did not submit his election within 90 calendar days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60.
3. On 12 June 2002, the FSM and his previous spouse were divorced. On
3 May 2003, the FSM and the applicant were married. They had two children born in this marriage.
4. The FSM died on 13 August 2010. The death certificate lists his marital status as married and lists the applicant as his spouse.
5. Information obtained from Human Resources Command (HRC), Integrated Web Services, shows that on 8 September 2010 the applicant called HRC in reference to the FSM's SBP. The HRC representative informed her that the FSM did not make an election when he received his 20-Year letter or when he remarried. She was informed that there were no benefits.
6. 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.
7. 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 have waited until he/she applied for retired pay and elected to participate in the standard SBP.
8. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. 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. Extensive publicity was given in Army Echoes, the 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.
DISCUSSION AND CONCLUSIONS:
1. There are no documents in the available records, or provided by the applicant, which indicate the FSM made an election to participate in the RCSBP, or that he subsequently elected to participate in the RCSBP during an Open Season enrollment period. In fact, information obtained from HRC verifies that the FSM did not make an election when he received his 20-Year letter or after his marriage. The Army provided extensive publicity and opportunities to enroll in the SBP during the 2005 through 2006 Open Season.
2. In the absence of evidence that the FSM elected to participate in the RCSBP there is no basis to now designate her as the beneficiary.
3. In view of the foregoing, there is no basis for granting her request.
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.
_______ _ _______ ___
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) AR20100026080
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ABCMR Record of Proceedings (cont) AR20100026080
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