BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110012544 


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 Survivor Benefit Plan (SBP) benefits based on the death of her husband, a former service member (FSM).

2.  The applicant states she thought her late husband took care of the paperwork. Her late husband died in September 2006.  He called the unit before he died to ensure everything was taken care of.  After the phone conversation, he assumed his survivor benefits were in place and told her that everything was taken care of. When he died, she contacted the unit but she was told the FSM did not submit the paperwork within 90 days.  She was very hurt and confused and she did not know what to do.  Someone told her years later that she was entitled to a military identification card (ID) and to inquire about the SBP, which she now needs because her son will be going to college.

3.  The applicant provides a copy of her ID card, marriage certificate, and FSM's 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’s records show he was born on 27 November 1949.  He and the applicant were married on 14 November 1983.

3.  Having had prior active service, the FSM enlisted in the U.S. Army Reserve (USAR) on 18 February 1977.  He served through multiple reenlistments in the USAR in a variety of stateside assignments and he attained the rank/grade of sergeant first class/E-7.

4.  On 8 March 1994, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  This letter also notified the FSM that he was entitled to participate in the Reserve Component SBP (RCSBP) and that "By law, he had only 90 calendar days from the date he received this letter to submit his Survivor Benefit Plan Election Certificate (DA Form 1883).  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.  If he did not elect coverage, and should he die before age 60, his survivor would not be entitled to benefits.

6.  There is no indication in the FSM's records that he elected to participate in the RCSBP during his 90-day window of opportunity in 1994.  Additionally, there is no indication in the record that the U.S. Army Reserve Personnel Center notified the applicant that the FSM either declined coverage or did not make an election, as it is not required by law.

7.  His Chronological Statement of Retirement Points shows he was transferred to the Retired Reserve in February 1999.

8.  Although it appears the applicant's husband made a telephone call inquiry about RCSBP Open Season enrollment in January 2006, he did not enroll at the time.

9.  On 15 September 2006, the FSM died at the age of 57.


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 Law 97-35, enacted 12 August 1981, established an Open Season from 1 October 1981-30 September 1982.  Public 101-189, enacted 
29 November 1989, established an Open Season from 1 October 1991-
30 September 1992.  Public Law 101-510, enacted 5 November 1990, changed the Open Season period enacted in Public Law 97-35 to 1 April 1992-31 March 1993.  Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006.  All of these Open Seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive SBP benefits based on the death of her husband, a FSM, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, Soldiers who complete 20 or more years are issued a 20-year letter that informs them of their retirement eligibility and are 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 do not indicate that he elected to participate in the RCSBP and the applicant has not provided any evidence showing that he elected to participate in the RCSBP.

3.  The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.  Additionally, since he chose to defer his election to age 60 but died prior to age 60, there was no coverage at the time of death.

4.  Further, even if he had enrolled during the October 2005 - September 2006 Open Season, he did not live the required 2 years needed to make such an enrollment effective. 

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 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)                                         AR20110012544



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ABCMR Record of Proceedings (cont)                                         AR20110012544



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