BOARD DATE:	21 September 2011

		DOCKET NUMBER:  AR20110001109 


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 widow of a deceased former service member (FSM) requests, in effect, that the FSM's records be corrected to show he was retired and designated her as the annuitant of his Reserve Component Survivor Benefit Plan (RCSBP).

2.  She states:

* the FSM received his 20-year letter in September 2003
* the medical information regarding his retirement was submitted prior to his unit's activation and deployment in 2003, as a result, he did not deploy
because he was waiting to be medically retired
* no decision had been made at the time of his death in 2007
* when he enrolled in the RCSBP he was urged to elect Option A
* she does not understand why anyone would elect Option A

3.  She provides:

* a self-authored statement
* the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* the FSM’s Certificate of Death
* DD Form 2656-7 (Verification for Survivor Annuity)
* Memorandum from the Human Resources Command (HRC)


CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 6 May 1950.  The FSM enlisted in the U.S. Army Reserve (USAR) on 20 August 1980 after having previously served in the U.S. Marine Corps.

2.  On 24 September 2003, 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.  His record contains a DD Form 2656-5 (RCSBP Election Certificate), which was signed, witnessed, and notarized on 5 December 2003 which shows the FSM elected (Option A) and declined to make an election until age 60.  Item 21 (Spouse) shows the applicant concurred with the FSM's election and acknowledges she understood that she may not change her mind at a later date regarding this RCSBP election.

4.  On 21 December 2007, the FSM died at the age of 57.  The death certificate shows he was married to the applicant at the time.

5.  On 22 January 2008, the applicant submitted a DD Form 2656-7 requesting verification of a survivor annuity.

6.  The applicant submitted a memorandum that she received from the Chief, Transition and Separations Branch, HRC, dated 19 February 2008, which:

   a.  informed the applicant that upon a review of the FSM's files, it had been determined that the FSM signed a DD Form 2656-5, dated 5 December 2003, electing Option A, declining to make an election at the time, remaining eligible to make an election for coverage at age 60; the applicant also signed this DD Form 2656-5, on the same date.

   b.  explained that for the widow of a former RC Soldier to receive an annuity based on the FSM's military service he would have had to survive until he reached his 60th birthday; as a result, she was ineligible to receive retired pay benefits.  

	c.  The applicant annotated this letter indicating that she did not receive it because it contains the wrong mailing address.



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 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.

8.  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 law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

9.  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.

10.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a RC Soldier.  The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  A qualifying year, under this system, is a year in which the service member earns at least 50 retirement points during their retirement year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to an RCSBP annuity based on the death of the FSM was carefully considered.  However, there is insufficient evidence to support this claim.

2.  Although the applicant completed a minimum of 20 years of qualifying military service, and served the last 8 years of his qualifying service as an RC Soldier, in order for the FSM to receive retired pay he must have attained age 60.  Since he was age 57 when he died he was ineligible for retired pay.

3.  Even though the applicant states that she never received the letter from the Transition and Separations Branch, dated 19 February 2008, stating that her request for an annuity had been denied, the evidence of record shows the FSM signed a DD Form 2656-5, on 5 December 2003, electing Option A, declining to elect RCSBP at the time, opting to make an election for coverage at age 60.  This form clearly shows the applicant concurred with the FSMs' declination to make an election at age 60 on the same date.  

4.  She also states the FSM was pending a medical retirement.  However, she has not provided evidence nor does his record contain any evidence that shows he was pending a medical retirement, nor would such evidence be relevant.  

5.  Therefore, in view of the above, due to the FSM deferring his RCSBP/SBP election with the applicant's concurrence, and the FSM's passing away prior to the age of 60, there is no RCSBP annuity or retirement benefit available.

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)                                         AR20110001109



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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