Search Decisions

Decision Text

ARMY | BCMR | CY2011 | 20110005892
Original file (20110005892.txt) Auto-classification: Denied

		
		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110005892 


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 elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
 
2.  The applicant states she was notified the unit/branch cannot find her husband's DD Form 1883 (Survivor Benefit Plan Election Certificate) which should have been completed when he became eligible for retirement or when he received his 20-year letter.  She believes he would have made the election to cover her.

3.  The applicant provides:

* a letter from the U.S. Army Human Resources Command, Fort Knox, KY, dated 8 March 2011
* a memorandum to the FSM from the U.S. Army Reserve Personnel Center, St. Louis, MO, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 16 July 1996

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 


Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 19 December 1948.  Having prior service in the
U.S. Marine Corps, U.S. Marine Corps Reserve, and the Army National Guard, he enlisted in the U.S. Army Reserve (USAR) on 19 January 1980.  His date of marriage is unknown; however, his record indicates he was married to the applicant when he enlisted in the USAR.

3.  On 16 July 1996, the FSM received his 20-year letter.  Paragraph 4 of this memorandum pertains to the RCSBP and the DD Form 1883 and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60.  This form also states "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."  Records at the U.S. Army Human Resources Command do not show the FSM ever made an election or applied for retired pay.

4.  The FSM was assigned to the U.S. Army Reserve Control Group (Retired) effective 15 October 1997.  On 16 January 1999, he was honorably discharged from the USAR in the rank/grade of staff sergeant (SSG)/E-6.

5.  On 3 November 2002, the FSM died at the age of 53.

6.  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.

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 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.

Before the law was amended in October 2000, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  Failure to elect an option resulted in the default election of option A, decline enrollment and choose at age 60 whether to start SBP participation.

8.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted during the period 1 March 1999 - 29 February 2000.  Extensive publicity was given in various Army publications.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is no evidence the FSM made an RCSBP election in 1996 or during an Open Season period.

2.  The law required the RCSBP election to be made within 90 days of receiving the 20-year letter or the opportunity to elect coverage was deferred until age sixty.  The FSM made no election and there is no evidence to show he attempted to enroll during the Open Season in March 1999 - February 2000.

3.  Regrettably, there is insufficient evidence to show the FSM completed the
DD Form 1883 in the required time frame.  Therefore, there is no basis in equity for 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)                                         AR20110005892



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005892



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2010 | 20100011212

    Original file (20100011212.txt) Auto-classification: Approved

    The applicant states, in effect: * It was the FSM's wish for her to be his SBP beneficiary * The FSM would have turned 60 years of age on 21 August 2009 * DD Form 1883 (Survivor Benefit Plan Election Certificate) was signed and submitted * She was the spouse of a service member who served 33 years in the Army and the U.S. Army Reserve (USAR) and sacrifices were made mutually * They were married for 37 years * The FSM served in Vietnam and was awarded the Bronze Star Medal and Air Medal 3. ...

  • ARMY | BCMR | CY2009 | 20090013594

    Original file (20090013594.txt) Auto-classification: Denied

    The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. He married the applicant on 18 September 1980. 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...

  • ARMY | BCMR | CY2013 | 20130022283

    Original file (20130022283 .txt) Auto-classification: Approved

    The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage. Counsel requests the applicant's eligibility for an RCSBP annuity be established and that she be paid based on the DD Form 1883 (SBP Election Certificate) submitted by the FSM. * the FSM completed 20 of years service and a 20-year letter was sent to him * he...

  • ARMY | BCMR | CY2013 | 20130022283

    Original file (20130022283.txt) Auto-classification: Approved

    The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage. Counsel requests the applicant's eligibility for an RCSBP annuity be established and that she be paid based on the DD Form 1883 (SBP Election Certificate) submitted by the FSM. * the FSM completed 20 of years service and a 20-year letter was sent to him * he...

  • ARMY | BCMR | CY2011 | 20110012544

    Original file (20110012544.txt) Auto-classification: Denied

    The applicant requests, in effect, entitlement to Survivor Benefit Plan (SBP) benefits based on the death of her husband, a former service member (FSM). If he did not elect coverage, and should he die before age 60, his survivor would not be entitled to benefits. 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.

  • ARMY | BCMR | CY2013 | 20130003292

    Original file (20130003292.txt) Auto-classification: Approved

    The FSM's records do not indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter. Although the FSM completed a DD Form 1883 on 17 October 2001, this form is not valid since it was not completed within 90 days of his 20-year letter. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing the FSM properly elected to participate in the RCSBP, spouse coverage, Option C, full...

  • ARMY | BCMR | CY2010 | 20100012089

    Original file (20100012089.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 30 November 2010 DOCKET NUMBER: AR20100012089 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. His next available enrollment would have been at age 60; however, he did not live to be 60 years old and now there are no RCSBP/SBP or retirement benefits for her. In a letter, dated 19 March 2010, the applicant states soon after the FSM's death she discovered she would not be entitled to survivor benefits or retirement benefits because the FSM failed to enroll in the RCSBP.

  • ARMY | BCMR | CY2013 | 20130004957

    Original file (20130004957.txt) Auto-classification: Denied

    The applicant, the widow of a deceased former service member (FSM), requests correction of her husband's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) with spouse coverage. She applied for the survivor annuity and was told that a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) was not on file in the FSM's military records. The applicant contends that the records of her deceased husband should be corrected to show he enrolled in the RCSBP...

  • ARMY | BCMR | CY2011 | 20110005377

    Original file (20110005377.txt) Auto-classification: Denied

    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. 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)...

  • ARMY | BCMR | CY2011 | 20110008357

    Original file (20110008357.txt) Auto-classification: Denied

    The applicant states when the FSM was transferred to the Retired Reserve in 1997 he should have turned in a DD Form 1883 (SBP Election Certificate), but he elected to wait until he was 60 years of age. On 14 October 1997, by memorandum, the USAR issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (15-year letter). This memorandum notified the FSM that he had completed at least 15 years of qualifying service and would be eligible for retired pay upon application at age 60.