IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110014052 


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 the records of her husband, a deceased retired former service member (FSM), be corrected to show he elected spouse coverage in the Reserve Component Survivor Benefit Plan (RCSBP) within 1 year of their marriage.

2.  The applicant states the FSM was not married at the time he received his 20-year letter so he had no election to be made for RCSBP.  They were married in 2005.  The FSM informed the appropriate authorities and she was designated as the beneficiary of his Veterans Group Life Insurance after filling out forms and sending in their marriage certificate and divorce decrees.  She was also issued a dependent military identification card.  The FSM asked what he needed to do about the retirement and he was told to file the DD Form 2656 (Data for Payment of Retired Personnel) with his retirement package.

3.  The applicant provides:

* the FSM's undated Notification of Eligibility for Retired Pay at age 60 
(20-year letter)
* a memorandum, dated 31 May 2011, from the Colorado Army National Guard (COARNG) to the Human Resources Command (HRC)
* a reissued 20-year letter, dated 3 June 2010
* the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty)
* their marriage certificate
* an NGB Form 22 (National Guard Bureau Report of Separation and Record of Service)
* an Army National Guard Retirement Points History Statement
* DD Form 2656
* the FSM's death certificate
* a DD Form 2656-7 (Verification for Survivor Annuity)
* a Direct Deposit Sign-Up Form
* W-4P (Withholding Certificate for Pension or Annuity Payments)

CONSIDERATION OF EVIDENCE:

1.  According to a memorandum from the COARNG to HRC, dated 31 May 2011, the FSM was issued a 20-year letter in September of 1999.  The COARNG stated he had 90 days to make an election for the RCSBP.  He did not complete the forms for RCSBP at the time because he was single.  The COARNG stated they were unable to say with 100 percent certainty that the FSM was informed he needed to update his RCSBP forms after he got married.

2.  The FSM's official military personnel file (OMPF) in the interactive Personnel Electronic Records Management System (iPERMS) contains an undated 20-year letter prepared on 13 October 1999.  A second 20-year letter, dated 3 June 2010, was issued and indicated that it was issued to replace a previously issued
20-year letter that was lost or misplaced and could not be located in the FSM's iPERMS, state record, or HRC file.

3.  On 17 April 2005, the applicant and the FSM were married.  

4.  On 31 May 2005, the FSM was transferred to the Retired Reserve.

5.  On 4 November 2009, the FSM completed a DD Form 2656 for retired pay at age 60.  His date of birth on the form is listed as 5 June 1950.  His SBP election shows he was electing spouse only coverage based on the full amount of his retired pay.

6.  On 25 January 2010, the FSM died at the age of 59.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

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.  Once a member elects either option B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

9.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.  DFAS interprets the phrasing of the first sentence of this section to read, "…is not married or has no dependent child."

DISCUSSION AND CONCLUSIONS:

1.  The FSM was not married at the time he received his 20-year letter.  Therefore, he had 1 year from the time of his marriage to the applicant to enroll her in the RCSBP.  There is no evidence of the FSM having enrolled in the RCSBP within 1 year of marriage.

2.  The evidence shows the FSM was electing SBP coverage for the applicant based on the full amount of his retired pay.  This coverage would have been effective on his 60th birthday when he started receiving retired pay.

3.  However, because the FSM passed away prior to his 60th birthday there is no SBP annuity.  Additionally, she has submitted no independent evidence showing that her husband sought guidance and received misinformation regarding RCSBP enrollment.

4.  Regrettably, there is an insufficient basis to grant relief in this case.


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)                                         AR20110014052



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ABCMR Record of Proceedings (cont)                                         AR20110014052



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