BOARD DATE: 22 November 2011
DOCKET NUMBER: AR20110007893
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, in effect, a Reserve Component Survivor Benefit Plan (RCSBP) annuity.
2. The applicant states her deceased husband, an FSM in the Army National Guard, received a Notification of Eligibility for Retired Pay for Non-Regular Service (20-Year Letter) on 29 June 1995. On 22 August 1995, he completed a DD Form 1883-R (Survivor Benefit Plan Election Certificate) by choosing Option A Decline Election Until Age 60.
3. The applicant continues that the FSM retired from the Army National Guard on 8 October 1999. She and the FSM were married in 2003 and the FSM was not aware that he needed to change his RCSBP election to Option C Provide an Immediate Annuity (to begin on the day after the date of the Soldiers death whether before or after age 60).
4. The applicant concludes that in 2009, the FSM was diagnosed with terminal cancer. On 12 October 2009, he attempted to change his RCSBP election to Option C by sending a letter to the U.S. Army Human Resources Command (USAHRC), St. Louis, MO. He received no response and he died on 15 May 2010 without confirmation he changed his option.
5. The applicant provides:
* a letter to the Army Board for Correction of Military Records (ABCMR), dated 28 March 2011
* a letter to USAHRC, Fort Knox, KY, dated 4 January 2011
* a DD Form 1883-R, dated 22 August 1995
* their State of Michigan Marriage License
* the FSM's State of Michigan Certificate of Death
* a DD Form 2656-7 (Verification for Survivor Annuity), dated 4 January 2011
* a Standard Form 1199A (Direct Deposit Sign-Up Form), dated 4 January 2011 and voided personal check
* a letter to USAHRC, St. Louis, dated 12 October 2009 with enclosures
CONSIDERATION OF EVIDENCE:
1. The FSM served in the Michigan Army National Guard (MIARNG) from 9 October 1975 through 17 October 1998. On 29 June 1995, he received his
20-Year Letter stating he qualified for non-regular retirement at age 60.
2. On 22 August 1995, the FSM completed a DD Form 1883-R. At that time, he opted to decline making an election until he reached age 60 (18 October 2012).
3. The FSM married the applicant on 31 January 2003. There is no record the FSM attempted to change his RCSBP option during 1-year period following their date of marriage.
4. In 2009, the FSM was diagnosed with cancer. On 12 October 2009, he wrote a letter to USAHRC, St. Louis, seeking to update his records and request spouse election for his spouse. He further requested any forms he may need to sign or fill out on this matter. There is no record of a response.
5. The FSM died on 15 May 2010. He was 57 years old.
6. Public Law 92-425, enacted 21 September 1972, established the SBP. SBP is a plan whereby a portion of a military retiree's pay is paid to a category of beneficiary. Without this plan, all retired pay would stop upon the death of the retiree. The plan, which is partially funded by the government, is paid for by monthly deductions from the retired pay of the member. The decision to elect in
or out of the coverage is made at the time of retirement and is generally irrevocable. Elections are made by category, not by name.
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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
8. By law, a Soldier who has no spouse on the date an RCSBP election is made and later marries has 1 year after the date of the marriage to make an RCSBP election. Additionally, there is a 1-year waiting period for the new spouses eligibility to receive an SBP annuity following post-retirement marriage.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests an RCSBP annuity as a result of the FSM's death.
2. When the FSM completed his DD Form 1883 in 1995, he elected to decline making an election until he reached age 60. When he married in January 2003, he had a 1-year window of opportunity in which to change his election option to provide SBP coverage for his spouse, the applicant. However, he failed to do so.
3. Regrettably, the applicant is not entitled to an SBP annuity.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ 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.
_______________________
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) AR20110007893
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110007893
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110017403
The case corrected the military records of an FSM to show the applicant (the FSM's spouse) was entitled to an RCSBP annuity effective the date following the FSM's death. There was no evidence the FSM completed a DD Form 1883 or that the spouse was informed the FSM could participate in the RCSBP. The evidence of record shows the FSM received his Twenty-Year Letter with the accompanying SBP forms in June 2000. a.
ARMY | BCMR | CY2005 | 20050013725C070206
Edward E. Montgomery | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. ...
ARMY | BCMR | CY2009 | 20090018505
The evidence of record shows that upon receiving his 20-year letter, the FSM submitted an SBP Election Certificate on 30 October 1990, in which he elected full immediate spouse and children RCSBP coverage. The evidence of record further shows subsequent to his death, his spouse, the applicant, requested an annuity be started based on his death and she received a letter on 2 October 1995 from USAHRC-STL confirming her entitlement to the annuity. As a result, the Board recommends that all...
ARMY | BCMR | CY2009 | 20090008143
His request for retirement was accepted and he was issued a retired order; however, he died 21 days before reaching age 60. If he did not submit his election within 90 days, he would not be entitled to survivor benefit coverage until he applies for retired pay at age 60. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.
ARMY | BCMR | CY2010 | 20100022618
She and the FSM were married in 1988 and he elected spouse coverage for her within the first year of their marriage. The applicant provides: * the FSM's divorce degree * the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate) * the applicant and the FSM's marriage license * the FSM's Joint Uniform Military Pay System (JUMPS)-Army Retired/Annuitant Pay Statement effective February 1991 * a letter from DFAS to the FSM, dated 1 February 1991 * the FSM's Retiree Account Statement...
ARMY | BCMR | CY2010 | 20100028722
The applicant provides one of the FSM's Retiree Account Statements with an effective date of 5 December 2005. The statement shows the FSM elected spouse-only SBP coverage and shows his spouse's DOB as 27 September 1948. It would be appropriate to correct his DFAS records to show he elected former spouse coverage and option B under the RCSBP.
ARMY | BCMR | CY2009 | 20090017757
The applicant submits a DD Form 1883 completed by the FSM dated 13 January 1992: * showing his status as married * listing the applicant's name as his spouse * indicating he had two dependent children * electing SBP coverage for spouse and children * electing Option C based on full amount of retired pay 11. The applicant also submits a DD Form 2656 completed by the FSM on 24 April 2006: * showing his status as married * listing the applicant's name as his spouse * electing SBP coverage for...
ARMY | BCMR | CY2013 | 20130011221
The applicant provides copies of their marriage certificate; the FSM's death certificate, service records, an SBP election, and request for retired pay; and the denial. The DD Form 1883 also shows the FSM and a witness, apparently a member of the FSM's unit, placed their signatures on the document on 29 June 1993. c. Two DD Forms 108 (Application for Retired Pay Benefits), both dated 15 October 2011, and two DD Forms 2656 (Data for Payment of Retired Personnel), both unsigned and undated,...
ARMY | BCMR | CY2006 | 20060009118C071029
By law and regulation, members electing Option A under the RCSBP remain eligible to elect SBP coverage at age 60; however, an annuity will not be payable to beneficiaries if the member dies before age 60. In view of the facts of this case, absent a written concurrence from the applicant waiving her rights to SBP coverage, it would be appropriate and serve the interest of justice to correct the FSM's record to show he elected RCSBP spouse coverage at full base amount, Option B (RCSBP...
ARMY | BCMR | CY2006 | 20060003280C070205
The applicant, as the widow of a deceased former service member (FSM), requests, in effect, that the FSM’s military records be corrected to show she applied for the Reserve Component Survivor Benefit Plan (RCSBP) annuity in a timely manner. She also states that she was informed that she only had seven years from the FSM’s death to claim the SBP annuity. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.