IN THE CASE OF:  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110010737 


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

2.  The applicant states the Michigan Army National Guard and the U.S. Naval Reserve have been unable to find a copy of her husband's DD Form 1883 (SBP Election Certificate) and his 20-year letter for selection of RCSBP.  She has searched all his paperwork and has been unable to find the forms.  She believes the form was never sent to her husband and that she should be allowed to select option C and become entitled to RCSBP.  The applicant states she had many discussions with her husband about her and their children's care in the event of his death.  They would be able to draw on his military pension.  She does not believe he would fail to return a form necessary for them to benefit from his many years of service.

3.  The applicant provides copies of:

* Statement of Service for Naval Reserve Retirement, dated 15 July 1974
* marriage certificate, dated 7 December 1984
* State of Michigan court order changing the FSM's name, dated 2 November 1987
* FSM's death certificate, dated 17 July 2006
* U.S. Army Human Resources Command (HRC) letter, dated 9 January 2007
* email from the Lead Human Resources Assistant, Navy Personnel Command, dated 29 September 2010
* Army National Guard Retirement Points History Statement, dated 31 March 2011

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 17 August 1954.  He served in the Regular Army from 1973 through 1977 and had 1 qualifying year in the U.S. Army Reserve.  In 1980, he joined the U.S. Naval Reserve where he served until 2000 when he joined the Army National Guard.

3.  On 12 July 2006, the FSM died at the age of 51.

4.  The FSM's Statement of Service for Naval Reserve Retirement shows he was eligible for notification of eligibility for retired pay at age 60 on 14 July 1998 and the notice of eligibility (20-year letter) was issued on 14 October 1998.

5.  The letter from the HRC Transition and Separations Branch analyst, dated 9 January 2007, informed the applicant that a review of the FSM's SBP file revealed that he did not execute a DD Form 1883.  The letter further states he was mailed the SBP packet and failed to return the DD Form 1883 within the 90 days as prescribed by law.  Since he did not elect into the plan, no one is entitled to an annuity.

6.  The email from the Navy Personnel Command Lead Human Resources Assistant, dated 29 September 2010, informed the applicant that they had no documents relating to the FSM's RCSBP election.

7.  There is no indication in the FSM's records that he elected to participate in the RCSBP during his 90-day window of opportunity.  Additionally, there is no indication in the record that the U.S. Army Reserve Personnel Command notified the applicant that the FSM either declined coverage or did not make an election as it was not required by law.

8.  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.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It states in paragraph 2-9, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should receive RCSBP benefits based on the death of her husband, an FSM.  She believes the DD Form 1883 and 20-year letter were never sent to her husband, as he would not fail to return a form that was necessary for her and the children to benefit from his many years of service.

2.  By law and regulation, Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in 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.  

3.  The available evidence indicates the FSM received his 20-year letter issued in October 1998.  That letter notified him that he needed to make an SBP election within 90-days.  It is presumed that he failed to adhere to the notification instructions to make the SBP election within the 90-day period.  The FSM's records do not indicate he elected to participate in RCSBP and the applicant has not provided any evidence showing the FSM elected to participate in RCSBP.  He was in the U.S. Naval Reserve when his 20-year letter was issued.
4.  In the absence of evidence to the contrary, it must be presumed that the FSM was properly informed of his responsibilities regarding participation in the RCSBP in compliance with applicable regulations and he did not take any action.  The applicant has offered insufficient evidence to rebut the presumption.  

5.  In view of the foregoing evidence, the applicant is not entitled to the requested 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 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)                                         AR20110012544



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ABCMR Record of Proceedings (cont)                                         AR20110010737



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