IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110005377 


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 the FSM's record to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and child coverage.

2.  The applicant states she is unable to locate the DD Form 2656 (Data for Payment of Retired Personnel) signed by the FSM at the time of his retirement in 2006.

3.  The applicant provides:

* A DD Form 2656-7 (Verification for Survivor Annuity)
* A DD Form 2788 (Child Annuitant’s School Certification)
* A DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces)
* A Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* A Standard Form 1199A (Direct Deposit Sign-Up Form)
* A copy of the FSM’s Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* A copy of their Marriage Certificate
* A copy of the FSM’s divorce decree from his former spouse
* Copies of their children's birth certificates
* A copy of the FSM’s Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 October 1954 and he was commissioned in the Regular Army on 28 August 1976.  He served on active duty until he was honorably discharged on 1 May 1983.  He accepted a commission in the U.S. Army Reserve (USAR) on 2 May 1983 and he continued to serve.  He divorced his former spouse on 29 April 1996.

2.  On 4 June 1997, a Notification of Eligibility for Retired Pay at Age 60 (20-year Letter) was dispatched to the FSM.  In that notification, the FSM was notified that he was entitled to participate in the RCSBP, a plan that enabled him to provide an annuity for his spouse and other eligible beneficiaries.  In bold letters, the Notification informed the FSM that:

"BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD FORM 1883).  IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60.  IF YOU DO NOT ELECT COVERAGE AND SHOULD DIE BEFORE AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO BENEFITS."

The FSM was also provided detailed information concerning participation in the RCSBP and a blank DD Form 1883.  There is no evidence to show that the FSM ever made an election under the RCSBP.  It appears that he was unmarried at the time he was issued his letter and that he had minor children.
 
3.  He married the applicant on 1 January 2000 and he was promoted to the rank of colonel on 1 July 2000.  

4.  On 28 August 2006, he was transferred to the Retired Reserve where he remained until his death on 21 January 2011 at the age of 56.

5.  On 2 March 2011, officials at the Human Resources Command, Retired Pay Branch, Fort Knox, KY informed the applicant that the FSM did not make an election to participate in the RCSBP when he received his 20-year letter and he died prior to reaching his eligibility to apply for Retired Pay at age 60.  Accordingly, since he did not elect to participate, no one is entitled to the annuity.

6.  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 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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

7.  Under the law at the time the FSM was issued his 20-year letter, a member must have made the election within 90 days of receiving the 20-year letter or wait until he/she applied for retired pay and elected to participate in the standard SBP. Failure to elect an option resulted in the default election of option A.

8.  Public Law 105-261, enacted 29 November 1998, established an Open Season to be conducted from 1 March 1999 through 29 February 2000, which allowed individuals the opportunity to enroll or disenroll in the SBP.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

9.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted from 1 October 2005 through 30 September 2006.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she should be granted an RCSBP annuity has been noted and appears to lack merit.

2.  The applicant has provided no evidence to show that the FSM made an RCSBP election or any evidence to suggest that his decision not to make an election under the RCSBP until he reached age 60 was not a rationale decision on his part at the time.  However, it is unfortunate that he died before reaching age 60 and making such a decision.

3.  Additionally, the FSM was afforded an opportunity to enroll in the RCSBP during the Open Season period that was in effect at the time he married the applicant and during a second Open Season period about 6 years later.  There is no evidence that he elected to do so, which further reinforces his original decision to defer election until he reached age 60.
4.  Accordingly, since there is no evidence to show that he ever enrolled in the RCSBP or attempted to opt for any coverage under that program, there is no basis for granting the applicant the relief she is seeking.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by her late husband in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______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)                                         AR20110005377



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ABCMR Record of Proceedings (cont)                                         AR20110005377



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