IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100026826 


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:

Through counsel, the applicant requests, in effect, to receive the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the spouse of the FSM be deemed eligible to receive the SBP annuity due her.

2.  Counsel states, in effect, the spouse was informed by Chief of the Transition and Separations Branch, U.S. Army Human Resources Command (HRC) that she was not entitled to receive SBP benefits because her application for retired pay was received after the death of the FSM.  Counsel states that the FSM served honorably in the military and received numerous decorations and awards throughout his distinguished career.  The FSM retired on 21 May 1991.  He submitted his DD Form 1883 (Survivor Benefit Plan Election Certificate) in order to participate in the Reserve Component SBP (RCSBP) program within 90 days of receiving his 20-year letter but, unfortunately, forgot to complete Section VI (Signatures) and the election period expired.  Although he resubmitted the signed and witnessed DD Form 1883, he and his spouse were informed that it was past the 90-day period.  

3.  Counsel also states that on March 1994 the FSM was released from the U.S. Army Reserve (USAR).  On 18 March 2002, he turned 60 years old.  Almost a year later he was diagnosed with lymphoma cancer and from that time forward, he underwent several treatments until his death on 20 July 2007.  As a result, he was unable to complete the necessary paperwork, although it was signed and executed, but not mailed.  After his death, his spouse found his paperwork dated 2005 and submitted to HRC.  She also requested retroactive payment of his retirement benefits and SBP.  Although she completed and submitted all of the required paperwork, she was informed that her application was denied because she applied after the date of his death.   

4.  Counsel concludes by stating that several meetings were discussed with Army personnel but they were always cancelled due to HRC's determination letter.  

5.  Counsel provides:

* An eight-page statement
* DD Form 1883 
* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Form 108 (Application for Retired Pay Benefits)  
* DD Form 2666 (Verification for Survivor Annuity)
* Three letters from HRC 
* Medical Records

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 February 1942.  He was commissioned as an officer in the USAR on 31 May 1963 and served continuously until he was transferred to the USAR Control Group (Retirement) on 28 March 1994.  

2.  On 3 May 1991, he received his 20-year letter from the U.S. Army Reserve Personnel Center (ARPERCEN, currently HRC) informing him of his eligibility for retired pay at age 60.

3.  ARPERCEN informed the FSM, in a memorandum dated 9 August 1991, that his DD Form 1883, dated 30 July 1991, was being returned to him to compete Section VI (Signature) on the front (page one) page.  

4.  Page one of the DD Form 1883, signed 27 August 1991, shows the FSM elected spouse only coverage based on the full amount of his retired pay, Option C, immediate annuity.  Page two of the DD Form 1883 shows the FSM and his spouse signed this page on 30 July 1991 acknowledging that the service member had been notified of his eligibility for retired pay upon application at age 60.
5.  On 30 September 1991, ARPERCEN informed the FSM and his spouse in separate correspondence that the FSM failed to submit his DD Form 1883 within the 90-day period.  If he died before reaching age 60, his survivors would not be entitled to receive an annuity, but he remained eligible to elect the standard SBP when he attained the age of 60.

6.  On 22 March 2005, the FSM completed a DD Form 2656 and elected spouse only SBP coverage, full base amount.  He was 63 years of age.

7.  The applicant submitted a copy of the FSM's medical records, which show he was diagnosed with lymphocytic lymphoma on 25 March 2003.  

8.  On 26 April 2005, the FSM completed a DD Form 108, requesting retired pay benefits effective March 2002.  

9.  On 31 July 2007, the FSM died at the age of 65.  The death certificate shows he was married to the applicant at the time.

10.  On 10 October 2007, the applicant submitted a DD Form 2666 requesting verification for survivor annuity.

11.  On 25 October 2007, HRC informed the applicant that upon review of the FSM's files it had been determined that his application for retired pay benefits was received on 27 September 2007, a date later than his date of death on 30 July 2007.  As a result, she was ineligible to received retired pay benefits.  

12.  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 elect 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.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the 20-year letter or else wait until he or she applied for retired pay at age 60 and elect to participate in the standard SBP.

13.  Title 10, U. S. Code, section 12731(a) states a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to an RCSBP annuity based on the death of her husband was carefully considered and found to have merit.

2.  The evidence of record confirms the FSM was notified by memorandum 
(20-year letter), which included a DD Form 1883, that he had become eligible for a Reserve retirement upon reaching age 60 and was notified of the requirement for him to submit an RCSBP election within 90 days.  

3.  Evidence of record also shows that when the FSM initially submitted his      DD Form 1883, page one was returned due to the absence of his signature.  He did sign the form and resubmitted it on 27 August 1991, but it appears ARPERCEN did not receive the form before the 90-day window expired, and he and the applicant were informed by separate letter that he would not be eligible to enroll in the SBP until he applied for retired pay at age 60.  However, it is clear that the FSM intended to provide coverage and made an innocent mistake that was quickly corrected.  As a matter of equity, it is entirely appropriate to recognize that original RCSBP election.

4.  Evidence shows the FSM was diagnosed with lymphoma, was gravely ill, and undergoing chemotherapy, shortly after he became entitled to his non-regular retirement pay.  He completed his application for retirement at age 60, but it was not submitted until after his death.  However, this does not change the fact that he earned a retirement.

5.  As a result, the FSM's record should be corrected to show that the FSM elected RCSBP spouse coverage in a timely manner, that he applied for retired pay in a timely manner, and that the applicant be paid the SBP annuity retroactive to the day after his death.  The SBP premium payments will be recouped from the annuity.

BOARD VOTE:
___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

   a.  the FSM elected RCSBP spouse only coverage in a timely manner;
   
   b.  that the FSM applied for retired pay in a timely manner, to be effective the day he turned age 60; 
   
   c.  that the applicant be paid the SBP annuity retroactive to the day after his death; and

   d.  advising the applicant that the Defense Finance and Accounting Service will be instructed to collect any SBP premium payments due as a result of this correction.




      ___________ __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)                                         AR20100026826



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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