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 applicants 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 applicants 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.
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