IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110001327 


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, in effect, the records of her deceased husband, a former service member (FSM), be corrected to show she is entitled to a Survivor Benefit Plan (SBP) annuity.

2.  She states, in effect:

   a.  The FSM served honorably 38 years and he died on 24 May 2009, which was 6 months prior to his 60th birthday.  

   b.  She was denied survivor benefits due to the FSM's failure to make a Reserve Component SBP (RCSBP) election based on the original notification letter, dated 3 February 1991.  He did not receive the notification letter which was allegedly mailed to his home of record, in Rural Hall, NC.  However, he was mobilized and deployed during the 90-day period he was required to respond.  The FSM was released from active duty after the expiration of the 90-day period. 

   c.  The FSM's family does not have a record of receiving the RCSBP election notice.
   
   d.  The law in effect at the time requiring a Soldier to elect an option within 90 days subsequently changed to default to Option C for automatic enrollment when no election was made within 90 days.  She requests that she be granted the same amount of RCSBP as someone who became eligible after the law was changed.
   
3.  She provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Application, License, and Certificate of Marriage
* Certificate of Death
* Memorandum from the Defense Finance and Accounting Service
* Memorandum from the Transition and Separations Branch, U.S. Army Human Resources Command (HRC)  

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 11 November 1949.  He enlisted in the U.S. Army Reserve (USAR) on 16 June 1970.  He was commissioned as an officer in the USAR on 16 June 1980 and served continuously until his death on 24 May 2009 at the age of 59 years, 6 months, and 14 days.  The death certificate shows he was married to the applicant at the time.

2.  On 3 February 1991, the FSM was issued his 20-year letter from the U.S. Army Reserve Personnel Center (ARPERCEN, currently HRC), addressed to Box 6xx, Rural Hall, NC  27045, informing him of his eligibility for retired pay at age 60.  Paragraph 3 of this letter stated the FSM was entitled to participate in the RCSBP established by Public Law 95-397.  This plan enabled him to provide an annuity to his spouse and other eligible beneficiaries.  By law, the FSM had only 90 calendar days from the date the letter was received to submit his DD Form 1883 (SBP Election Certificate).  If he did not submit an election within 90 calendar days, he would not be allowed to obtain survivor benefit coverage until he applied for retired pay at age 60.  If he did not elect coverage and should die before age 60 there would be no benefits for his survivors.  

3.  She submitted a DD Form 214, which shows:

* the FSM was on active duty from 21 November 1990 to 27 May 1991
* he served in South West Asia from 12 December 1990 to 19 April 1991
* his mailing address after separation was 7xxx Cxxxxx Street, P.O. Box 6xx, Rural Hall, NC  27045

4.  The HRC Integrated Web-based System (IWS) contains an October 2010 record of communications concerning the applicant's RCSBP annuity.  The Officer Branch Chief, U.S. Army Reserve Command was told the FSM was sent a 20-year letter by certified mail receipt number 171579427 on 16 March 1991.  The IWS site shows the FSM's spouse informed them that the FSM told her he had enrolled in the SBP program but it ended when he left the mobilization tour.
5.  The FSM's record contains an ARPC Form 249-E (Chronological Statement of Retirement Points), dated 28 July 2011, and addressed to P.O. Box 6xx, Rural Hall, NC which shows he served in the USAR from 16 June 1970 to 24 May 2009.

6.  The FSM's spouse submitted a letter from the Chief, Transitions and Separations Branch, HRC, St. Louis, MO, dated 24 September 2010, to her Representative in Congress, which states that the FSM was issued a 20-year letter on 3 February 1991.  The FSM did not respond and as a result, he was barred from SBP enrollment until he applied for and was retired at age 60.  Unfortunately, the FSM died prior to retirement and therefore, his spouse is not entitled to an RCSBP annuity.  

7.  She submitted a letter from the Deputy Director, Operations, DFAS, Indianapolis, IN, dated 7 January 2011, to her Representative in Congress, which states that Public Law 92-425 was enacted to establish an SBP program for military personnel in retirement.  Under Public Law 94-397, RCSBP coverage for Reserve members was extended to include the time between attainment of 20 years of creditable service for retirement, regardless of age, and the members' 60th birthday.  This provided Reservists an early opportunity to select or decline SBP coverage should they not survive to receive retired pay at age 60.

8.  The letter confirms that the FSM had 90 days to make an RCSBP election, upon receipt of his 20-year letter, dated 3 February 1991, but did not make an election within the 90-day timeframe for the RCSBP; therefore, the default was Option, A.  Option A is to decline to make an election until the age of 60.  The FSM passed away before the age of 60; therefore, no election was made and no annuity is payable.  The 2001 Authorization Act changed the RCSBP enrollment procedures for Soldiers receiving a 20-year letter after 31 December 2000.  Soldiers are considered automatically enrolled in RCSBP under Option C, which is an immediate annuity.  The FSM received his letter prior to 31 December 2000 and did not qualify for the immediate annuity option.  The applicant was told that she could petition this Board and request a review of his RCSBP entitlement.

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.  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.  An election, once made, was irrevocable except in certain circumstances.  
11.  Public Law 94-397, 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.

12.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.

13.  Public Law 108-375, enacted on 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be designated as the annuitant of her deceased spouse’s SBP because he was deployed and did not receive his RCSBP election notification was carefully considered.

2.  The available evidence shows the FSM's 20-year letter that notified him he had 90 days to make an RCSBP election was mailed to the Post Office Box that was and still is listed as their mailing address.  The IWS shows the letter was sent by certified mail on 16 March 1991.

3.  The available evidence also shows the FSM was mobilized and deployed during time he received his 20-year.  However, if the letter was certified and sent on 16 March 1991, the FSM had until at least 15 June 1991 to make his election. He redeployed on 19 April 1991 and was released from active duty on 27 May 1991.

4.  There is no evidence he ever attempted to make an RCSBP election in conjunction with his 20-year letter or during the open season enrollment periods that occurred prior to his death 19 years later.  He made neither inquiry nor complaint about the whereabouts of his 20-year letter nor inquiries into the RCSBP.

5.  In the absence of evidence that the FSM elected to participate in the RCSBP there is no basis to now designate the applicant as the recipient of such benefits.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:
________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

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)                                         AR20110001327



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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