BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014510


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:

* her late husband died on 2 June 2011
* for years her husband instructed her to make sure she got his retirement [SBP annuity] after he died
* her late husband may not have completed a DD Form 1883 (SBP Election Certificate), because she is not sure he knew about it
* if her late husband did, in fact, complete a DD Form 1883, she has no idea what happened to it
* he served 22 years, and he wanted her to get his retirement SBP annuity because he knew she would need it 

3.  The applicant provides:

* a 3-page personal appeal to the Board, in which she describes her late husband and the personal hardship she now suffers since his passing
* DA Form 200 (Transmittal Record)
* Checklist, Annuity Packet
* DD Form 2656-7 (Verification for Survivor Annuity)
* Substitute Form 1199A (Direct Deposit Sign-Up Form)
* Internal Revenue Service (IRS) Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement)
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* letter, Military Department of Tennessee, Office of the Adjutant General, Tennessee ARNG (TNARNG), dated 15 June 2011
* fax transmittal, dated 26 October 2011
* Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services)
* State of Tennessee Certificate of Death
* State of Tennessee Marriage Certificate
* SGLV Form 8283 (Claim for Death Benefits)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 31 July 1956 and enlisted in the TNARNG on 7 March 1976.  He served through multiple reenlistments in the TNARNG in a variety of assignments and attained the rank/grade of sergeant/E-5.

2.  On 30 April 1997, the TNARNG 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.  The letter indicates the FSM was provided a "Survivor Benefit Plan Summary;" however, there is no direct language in the body of the letter related to the SBP.

3.  There is no documentation in the FSM's available records that shows he elected to participate in the Reserve Component SBP (RCSBP) after receiving his 20-year letter in 1997.  

4.  On 6 March 1998, he was discharged from the TNARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve).  His NGB Form
22 (Report of Separation and Record of Service) shows he completed 22 years of service.  His NGB Form 23B shows he was credited with completion of 
22 qualifying years of service for retirement.  

5.  On 7 July 2007, the FSM and the applicant were married.  There is no evidence in the FSM's available record that shows he notified the Defense Finance and Accounting Service (DFAS) of his marriage within 1 year of the date of his marriage.  Likewise, there is no indication in the FSM's available record that shows he notified DFAS of his intent to enroll his spouse as his SBP annuity beneficiary within 1 year of the date of his marriage.

6.  On 2 June 2011, the FSM died at the age of 54.
7.  The applicant provides a 3-page personal appeal to the Board, in which she states she was previously married to the FSM but their marriage ended in divorce.  They remained friends, and in 2007, married again.  She describes her late husband's attributes and her personal struggles with coping with his passing.  
8.  She also provides multiple documents that comprise her "Annuity Packet."  Most of these documents appear to have been completed after the date of the FSM's death.  None provide an indication that he enrolled in the SBP when appropriate.

9.  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 (20-year letter), or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive SBP annuity 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 offers them 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, the FSM had a 1-year window of opportunity, following his marriage in 2007, to enroll his spouse as his SBP annuity beneficiary; but there is no indication that he did so.  Accordingly, 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)                                         AR20110014510



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