IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110008357 


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, entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her husband, a former service member (FSM).

2.  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.  She would like his records corrected to show he did fill out a DD Form 1883.  Unfortunately, he died on 12 May 2007 and would not have turned 60 until 20 December 2010.

3.  The applicant provides:

* The FSM's U.S. Army Reserve (USAR) Notification of Eligibility for Retirement Pay at Age 60
* Orders
* A certificate of death
* A certificate of marriage
* A DD Form 1883 
* A DD Form 2656-7 (Verification for Survivor Annuity)
* A Standard Form 1199A (Direct Deposit Sign-Up Form)
* A letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY




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's records show he was born on 20 December 1950.  Having had prior service, he enlisted in the USAR on 8 January 1978.  

3.  A DD Form 93 (Record of Emergency Data), dated 8 November 1992, shows he was divorced and he had two children born on 27 September 1977 and 17 February 1979, respectively. 

4.  His DA Form 2A (USAR - Personnel Qualification Record), dated 10 October 1996, shows his marital status as "Divorced."

5.  Orders 97-147-003, dated 27 May 1997, issued by Headquarters, 104th Division, Vancouver, WA, transferred him to the Retired Reserve effective 7 April 1997.

6.  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.  

7.  Enclosed with this letter was a DD Form 1883 which notified the FSM that he was entitled to participate in the RCSBP and that "by law" he had only 90 calendar days from the date he received this letter to submit his SBP Election Certificate.  If he did not elect coverage, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60, and should he die before age 60, his survivor would not be entitled to benefits.  If he did not submit his election as required, his election would be determined by law.

8.  On 19 March 2001, the FSM married the applicant.  On 12 May 2007, the FSM died at the age of 56.

9.  The applicant provides a letter, undated, wherein HRC denied her request for an RCSBP annuity and stated the FSM's records showed he never enrolled in the RCSBP.

10.  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;  (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 else wait until he/she applied for retired pay and elected to participate in the standard SBP.

11.  Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  This Open Season was extensively publicized in Army Echoes to ensure all retirees were informed of its existence.  

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Soldiers who completed at least 15 years of qualifying service beginning on or after 1 October 1991 and ending on or before 31 December 2001 were issued a 15-year letter that informed them of their retirement eligibility and they were offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  The FSM's records indicate he failed to make an election. 

2.  As the FSM was not married at the time of receipt of his 15-year letter, he would not have been able to elect spouse coverage.  Further, because he had minor children when he did not elect RCSBP his only option would have been to enroll his spouse during an open season.  He did not do so and even had he done so he did not survive the 2 years required for coverage to become effective.



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)                                         AR20110008357





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ABCMR Record of Proceedings (cont)                                         AR20110008357



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