BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110001656 


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, that the records of her late husband, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for her at the time of his retirement. 

2.  She states that her late husband was diagnosed with cancer shortly after retiring from the service.  She knows that he did not intentionally forget to fill out the DD Form 1883 (SBP Election Certificate) because he specifically told her where the papers were if something was to happen to him.  She truly believes that her late husband thought he had filled out all the paperwork regarding his retirement benefits.  She questions why his paperwork was not checked when he turned it in.  

3.  She also states that she is appealing the decision that she is not eligible for her late husband's retirement benefits due to her upon his death.  She believes this is an oversight on the military end and the DD Form 1883 has been lost.  After his death, it took over 3 months for her to reach the right office to address this matter.  She found a DD Form 1883 with her late husband's signature along with several other papers that name her as the primary beneficiary.  She realized some of the papers are old, but they do clarify that he would have wanted her to have these benefits due her upon his death.  

4.  She provides:

* Certificate of Marriage

* DD Form 1883, undated
* Three SGLV Forms 8286 (Servicemen's Group Life Insurance Election and Certificate), dated 10 January 1993, 4 May 2003, and 21 May 2004
* DD Form 93 (Record of Emergency Data), dated 4 May 2004
* DD Form 2656-5 (Reserve Components SBP (RCSBP) Election Certificate), dated 13 April 2005
* Certificate of Death
* Two Letters from the Army Human Resources Command (HRC), SBP Section, Retired Pay Branch, dated 3 and 30 November 2010
* DD Form 2656-7 (Verification for Survivor Annuity), dated 8 November 2010
* DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), dated 8 November 2010
* W-4P (Withholding Certificate for Pension or Annuity Payments), dated 8 November 2010
* Two Direct Deposits Sign-Up Forms, dated 8 and 17 November 2010

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 May 1961.  He and the applicant were married on 15 September 1989.

2.  The FSM's military records show he served in the U.S. Air Force Reserve from 13 May 1980 to 28 June 1992.  He enlisted in the Missouri Army National Guard (MOARNG) on 29 June 1992.

3.  The FSM was issued a 20-Year Letter on 23 June 2000.

4.  The FSM was honorably discharged from the MOARNG in pay grade E-7 on 11 February 2005 and was transferred to the Retired Reserve.  He was credited with completing 24 years, 8 months, 29 days of total service for retired pay.

5.  The FSM died on 1 August 2010.  

6.  The applicant provided a copy of DD Form 1883 which she stated was completed by the FSM prior to his retirement.  The forms shows the FSM marked the "Yes" blocks in Section II (Marital, Dependency, and Election Status).  He did not indicate any SBP election.  In Item 9c he elected Option A (Defer).  The FSM identified the applicant as the FSM's spouse in Section III (Family Information).  The undated form appears to have been signed by the FSM.  His signature was not witnessed, as required.  DD Form 1883 Reverse was not provided by the applicant.
7.  DD Form 1883 Reverse explained that if Option A was elected the member was declining to make an election at that time and acknowledged he/she would remain eligible to make an election for coverage at age 60.  If the retiree does not elect option B or C at that time, and should die before age 60, the survivors would not receive benefits under Public Law 95-397.  The DD Form 1883 advised the members that the decision they made with respect to participation in the SBP was a permanent irrevocable decision and to consider their decision and its effect very carefully.

8.  The applicant further provided copies of three SGLV Forms 8286, dated 10 January 1993, 4 May 2003, and 21 May 2004, which shows the FSM designated her, his stepson, and his father as his beneficiary to receive payment of his insurance proceeds.

9.  The applicant also provided a copy of a DD Form 2656-5 wherein it appears the FSM completed and signed it on 13 April 2005.  In Section II (Marital/Dependency Status), Item 7 (Are You Married?), he marked the "Yes" block and listed the applicant as his spouse in Section III (Spouse/Dependent Child(ren) Information). In Section IV (Coverage) he marked the "Spouse Only" block.  

10.  The applicant further provided a copy of a letter, dated 3 November 2010, from HRC, SBP Section, wherein she was advised that she must complete a DD 
Form 2656-7 in order to obtain benefits from her spouse's service.  She provides a copy of the completed DD Form 2656-7 with her application.

11.  The applicant further provided a copy of a letter, dated 30 November 2010, from HRC, Retired Pay Branch, wherein she was advised that a review of her late husband's Reserve Component Survivor Benefit File found that he did not complete a DD Form 1883; therefore, she was ineligible to receive the annuity.  She was also advised that she may petition the Army Board for Correction of Military Records for a review of her case.  

12.  The FSM would have reached age 60 on 5 February 2021.

13.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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.  At the time, a member 
must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or waited election until he applied for retired pay and elected to participate in the standard SBP.

14.  Public Law 106-398, enacted 30 October 2000, required Reserve and Guard members, who had completed their service obligation, considered entitled to retired pay, but who were not yet age 60, to obtain their spouse's concurrence in RCSBP elections that did not provide maximum spouse coverage (immediate option).  The law applied to members receiving notification of service completion after 1 January 2001.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM and the applicant were married on 15 September 1989.  He was issued a 20-Year Letter on 23 June 2000.  HRC, Retired Pay Section indicated he elected to decline enrollment in RCSBP at the time.  The DD Form 1883 the applicant provided indicated the FSM chose the option of making an SBP election at age 60.  Spousal concurrence of this election was required only after January 2001.  Although the FSM had qualified for a reserve retirement, unfortunately, he died prior to reaching age 60.  

2.  The applicant's contentions and documents she provided were carefully considered.  However, the evidence of record shows the FSM chose to delay his RCSBP/SBP election until he applied for retired pay.  There is no evidence the applicant concurred or non-concurred with his election at the time, but her concurrence was not required.  

3.  Based on the foregoing, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to an annuity under the RCSBP. 

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)                                         AR20110001656





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ABCMR Record of Proceedings (cont)                                         AR20110001656



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