BOARD DATE:	  28 June 2011
                                                                                                                                                                                                                                                                                                                                               
		DOCKET NUMBER:  AR20100026567 


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 correction of the record of her late husband, a former service member (FSM), to add dependent information and to show he made a Reserve Component Survivor Benefit Plan (RCSBP) election.

2.  She states, in effect, she married the FSM after he retired from the U.S. Army Reserve (USAR).  The FSM died on 23 July 2010.  She and her daughter were unaware of their eligibility to enroll in the Defense Enrollment Eligibility Reporting System (DEERS) and other benefits.  She states the FSM was unaware of the process for having his RCSBP election or his records updated.

3.  She provides a 20-year letter, DD Form 214 (Report of Separation from Active Duty), marriage certificate, and death certificate.

CONSIDERATION OF EVIDENCE:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) sets forth procedures for processing requests for correction of military records.  Paragraph 2-5 states the ABCMR will not consider any application if it determines the applicant has not exhausted all available administrative remedies.  The applicant provides no evidence showing she attempted to enroll in DEERS or for other benefits through an office authorized to act on such requests.  Accordingly, these proceedings will not further discuss the portion of her application pertaining to adding dependent information to the FSM's record.  She has been sent a letter informing her of this determination.

2.  The FSM served in the Regular Army from 6 February 1976 to 30 January 1979.  Upon his release from active duty he was transferred to the USAR where he served until he received a general discharge on 15 July 1996.  He was not transferred to the Retired Reserve.  He completed 20 years, 5 months, and 19 days of qualifying service for Nonregular retirement.

3.  His record includes a Certification of Vital Record issued by the Commonwealth of Virginia showing he is the father and the applicant is the mother of a daughter born on 20 March 1989.

4.  A DA Form 2-1 (Personnel Qualification Record – Part II) prepared on 12 March 1992 shows he had two dependents on that date.  The form shows a pen and ink change was made to change the entry to one, perhaps indicating a previous marriage and divorce.

5.  On 21 May 1996, he was notified he had completed the required years of service to be eligible for Nonregular retired pay at age 60.  The notification letter informed him he was entitled to participate in the RCSBP and that he was required to submit an election within 90 days of receipt of the notification letter.

6.  The record does not show he made an RCSBP election.

7.  The applicant provides a marriage certificate showing she married the FSM on 23 February 2006.  The certificate indicates he was not previously married.

8.  The applicant provides a death certificate showing the FSM died on 23 July 2010 at age 57 and that they were married at the time.

9.  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.

10.  At the time, a member must have made the election within 90 days of receiving 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.

11.  A person who was not married and had no dependent child upon becoming eligible to participate in the RCSBP, but who later married or acquired a dependent child, could elect to participate provided he/she did so within 1 year of marrying or acquiring a dependent child.

12.  The National Defense Authorization Act for Fiscal Year 2005 established an open season to be conducted 1 October 2005 to 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree was required to pay 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.

DISCUSSION AND CONCLUSIONS:

1.  The record indicates the FSM had no spouse and one child when he was notified of his eligibility to elect coverage under the RCSBP.  It appears he did not make an election, which at that time had the effect of declining enrollment and deferring his election until he reached age 60.

2.  He could not have made an RCSBP election for spouse coverage when he married in 2006 because he failed to elect coverage for his dependent child and foreclosed his ability to enroll prior to age 60, except during an open season.  Though his marriage occurred during an open season, there is no evidence he tried to enroll at that point.

3.  The applicant states the FSM was not aware of the process for having his RCSBP election updated.  However, she has not provided evidence showing what efforts, if any, he made to contact the appropriate office to update his RCSBP election.  It seems unlikely that an individual with over 20 years of military service would be incapable of finding the appropriate office to assist him with this task.  It is possible he intended to wait until he reached age 60 to make an election.

4.  In view of the foregoing, there is an insufficient basis for granting 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)                                         AR20100026567



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ABCMR Record of Proceedings (cont)                                         AR20100026567



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