IN THE CASE OF:	  

		BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110010762 


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 the FSM's record to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.  She also requests a formal hearing. 

2.  The applicant states:

* she was notified the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate) could not be found
* the form should have been completed when he received his 20-year letter or when he became eligible for retirement
* she believes the FSM would have made the election to cover her
* she has numerous documents from the FSM's personal files, but there is no evidence he was given the DD Form 1883; he kept meticulous records
* the FSM's 20-year letter is dated 7 June 1994, but his Retirement Year Ending (RYE) shows 21 August 1994
* the FSM's 20-year letter did not include the DD Form 1883 as an enclosure
* the DD Form 1883 is listed in the instruction; but no information was included or provided as to where the FSM could obtain a copy
* her calculations show the FSM would only have had 17 days to complete the form
* weekend drilling members do not always drill at the same time as the main unit drills and it can take additional time for the split training Soldier to receive paperwork
* the form should have required confirmation of delivery to the Soldier and she questions why there was no tracking record
* the DD Form 93 (Record of Emergency Data) and the SGLV 8286 (Servicemen's Group Life Insurance Election and Certificate) both show her as the beneficiary
* the FSM's retirement paperwork was complete and properly maintained
* she experienced no issues with the FSM's retirement from his Federal government job
* she served alongside the FSM and supported him when he went to weekend drills, annual training, additional duty, and whatever he had to do with the Pennsylvania Army National Guard (PAARNG)
* she wants what the FSM earned

3.  The applicant provides:

* self-authored statements
* SGLV 8266 
* DD Form 93 
* a memorandum from the Adjutant General's Office, Fort Indiantown GAP, Anniville, PA, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 7 June 1994
* 1994 Army National Guard Annual Statement
* cover page for Army Reserve Personnel Center Pamphlet 135-2 (Handbook on Retirement Services for Army Reserve Component Personnel and their Families), dated June 1993
* a letter from the U.S. Army Human Resources Command, Fort Knox, KY, dated 15 March 2011
* marriage certificate
* death certificate

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 a PAARNG Soldier with military service dating from 28 May 1970.  He and the applicant were married on 13 October 1989.

3.  On 7 June 1994, the FSM received his notification of eligibility for retired pay at age 60 (20-Year Letter).  The letter included instructions advising the FSM that he must complete a DD Form 1883 and elect one of the options available under the RCSBP.

4.  The FSM died on 3 March 2006 at age 55.

5.  On 25 April 2011, the applicant was notified by the Chief of Retired Pay, U.S. Army Human Resources Command that the FSM did not execute a DD Form 1883; therefore, any benefits to which she may be entitled to as a result of his military service would come under the jurisdiction of the Department of Veterans Affairs (DVA) and the Social Security Administration.

6.  Coordination with the Defense Finance and Accounting Service failed to show any allotments or deductions for premiums.

7.  Title 10, U.S.C, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last 8 years of qualifying service have been performed while a member of a Reserve Component.

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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  A member must make 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.

9.  Since 1 January 2001, by law, married RC members must provide written spousal concurrence in order to elect less-than-maximum RCSBP participation (i.e., other than Option C, full base amount, spouse or spouse/children).  Failure to do so will result in “automatic” spouse coverage, option C, full base amount, for which premiums will begin to be owed at age 60.  Prior to 1 January 2001, failure to make any RCSBP election, or making an improper RCSBP election, “defaulted” to no coverage, by law.

10.  Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered. 

2.  The applicant contends the FSM was conscientious and would have provided an RCSBP annuity for her.  She therefore concludes the FSM never received the DD Form 1883 when he received his 20-Year Letter.

3.  The Retirement Points Accounting Management (RPAM) system identifies RC Soldiers eligible to receive their 20-Year Letters.  The following is then accomplished:

* RPAM Administrators retrieve the lists of potentially eligible Soldiers and verify all entries with appropriate source documents, then issue the 
20-Year Letter within 60 days after each Soldier’s anniversary year ending date
* By law, the 20-Year Letter must be issued no later than 1 year after the date of eligibility
* RPAM Administrators forward 20-Year Letters and DD Forms 1883 along with counseling requirements to units for presentation to eligible Soldiers (the law requires this notification be provided)

4.  There is a presumption the Army followed all legal requirements and provided the FSM the DD Form 1883 when he was issued his 20-Year Letter.  The applicant's statement that this may not have happened does not overcome the presumption the Army acted properly.

5.  Prior to 1 January 2001, by law, if a RC Soldier failed to make any RCSBP election, or made an improper RCSBP election, there was a default to no coverage.


6.  Although the applicant requested a personal appearance before the ABCMR, there is no statutory or regulatory right to a formal hearing.  The ABCMR has carefully reviewed the facts of this case and the evidence provided by the applicant and it was determined that no formal hearing is required.

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)                                         AR20110010762



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ABCMR Record of Proceedings (cont)                                         AR20110010762



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