IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100030267 


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 a deceased former service member (FSM), requests correction of her husband's record to show he enrolled in the Survivor Benefit Plan (SBP) and elected her as the beneficiary.

2.  The applicant states:

	a.  she remembers the FSM completed, had her sign, and mailed paperwork for her to receive his military retirement in the event something were to happen to him;

	b.  because she is unable to locate of the paperwork she does not know if the FSM maintained a copy of it; however, she mailed what she could find to the civilian employee assisting her;

	c.  she was later informed she would not be eligible to receive the FSM's pension if she could not produce a DD Form 1883 (Survivor Benefit Plan Election Certificate);

	d.  she helps take care of her two daughters and three grandchildren because her oldest daughter, who has a child, is paralyzed from a car accident and her youngest daughter, who has two daughters, has been progressively taking chemotherapy to shrink two brain tumors (cancerous); 

	e.  it is very difficult to manage a mortgage that is now in foreclosure, utilities, food, and clothing on one income when there were two; and 
	f.  she is not asking for something that she believes she is not entitled to, but for what her husband gave his life for and is unfortunately unable to receive.

3.  The applicant provides:

* a DD Form 2656-7 (Verification for Survivor Annuity)
* a Form W-4P (Withholding Certificate for Pension or annuity Payments
* a Standard Form (SF) 1199A (Direct Deposit Sign-Up Form)
* the FSM's Certificate of Death
* an Application for Marriage License/Marriage Certificate
* the FSM's ARPC Form 249-E (Chronological Statement of Retirement Points)
* the FSM's 20-Year Letter
* the FSM's Retirement Order
* an email from a Survivor Benefits Analyst, U.S. Army Human Resources Command, Fort Knox, KY

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 31 July 1950.  He and the applicant were married on 27 September 1975.

2.  The FSM's record shows he enlisted in the U.S. Army Reserve (USAR) on
5 January 1978.

3.  On 2 April 1998, the U.S. Army Reserve Personnel Center, St. Louis, MO issued the FSM a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 2 April 1998.  This notification informed the FSM that he had completed the required years of service necessary to receive retired pay at age 60 upon application.  Paragraph 4 of this notification informed the FSM that by law, he had to complete his initial DD Form 1883 within 90 calendar days from the date of receipt of the 20-year letter and if he failed to make his election within 90 days, he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60.

4.  The 20-year letter further informed the FSM that if he did not elect coverage and died prior to reaching age 60, there would be no benefits for his spouse.  More detailed information concerning participation in the RCSBP and a blank DD Form 1883 were enclosed.

5.  There is no evidence in the FSM's official military personnel file (OMPF), Defense Finance and Accounting Service record, or independent evidence which indicates the FSM ever completed a DD Form 1883 to enroll in the RCSBP.

6.  The FSM was transferred to the Retired Reserve on 28 September 2006.

7.  On 17 February 2010, the FSM died at the age of 59.  The FSM's Certificate of Death shows he was married to the applicant at the time.

8.  The applicant provides a DD Form 2656-7, Form W-4P, and SF 1199A, which were all completed and authenticated with her signature subsequent to the FSM's death, on either the 1st or 11th of September 2011.

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 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.

10.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60; the default election when an election form was not submitted or is not on file is option C.  This law is applicable to cases where the 20-year letter was issued after 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she is entitled to an RCSBP annuity.

2.  By law and regulation, Soldiers who complete 20 or more qualifying years are issued a 20-year letter that informs them of their retirement eligibility and offers them the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  If the election was not submitted within the 90-day period, the member deferred the opportunity to enroll in the program until he or she applied for retired pay at age 60.  If the member died before reaching age 60, the spouse was authorized no SBP benefits.
3.  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.  He was notified of the requirement for him to submit an RCSBP election within 90 days and that if he failed to submit his election form, he would not be eligible to enroll in the SBP until he applied for retired pay at age 60 and his spouse would receive no SBP annuity if he died before reaching age 60.

4.  Although the applicant maintains the FSM completed, had her sign, and mailed the appropriate paperwork authorizing her receipt of his pension in the event something were to happen to him, this paperwork is not evident in his OMPF.  As a result, given there is no evidence that the FSM intended to enroll in the RCSBP prior to reaching age 60, the applicant was not eligible to receive an SBP annuity based on the death of the FSM prior to reaching age 60.  Regrettably, the applicant has failed to meet her burden of proof and as a result is not entitled to 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 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)                                         AR20100030267



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ABCMR Record of Proceedings (cont)                                         AR20100030267



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