IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110014575 


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

2.  The applicant states she received a printout from the Defense Finance and Accounting Service (DFAS) that shows her deceased husband made an SBP election with his application for retirement.  She also believes he made the same election prior to his death by completing a DD Form 1883 (SBP Election Certificate).  The DD Form 1883 was processed at the Reserve Center in Jackson, MS, but it was never forwarded to the St. Louis, MO, office to be included in his retirement file.

3.  The applicant provides:

* The FSM's U.S. Army Reserve (USAR) Notification of Eligibility for Retirement Pay at Age 60 (20-year Letter)
* Orders
* DFAS printout titled Summary of Retired Pay Account
* A certificate of death
* A letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY
* A letter from the National Personnel Records Center




CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 1 August 1950.  Having had prior service, he enlisted in the USAR on 1 December 1972.

2.  He and the applicant were married on 27 January 1983.

3.  On 12 April 1993, by memorandum, the USAR issued the FSM a Notification of Eligibility for Retired Pay at Age 60.  This memorandum notified the FSM that he had completed at least 20 years of qualifying service and would be eligible for retired pay upon application at age 60.  

4.  Enclosed with this letter was a DD Form 1883 which 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 SBP Election Certificate.  If he did not elect coverage, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60, and should he die before age 60, his survivor would not be entitled to benefits.  

5.  There is no indication that he made an RCSBP election.

6.  On 7 May 1993, he was transferred to the Retired Reserve.

7.  On 1 October 2009, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he elected SBP for full spouse coverage to begin at age 60.

8.  On 29 May 2010, the FSM died at the age of 59.  He was married to the applicant at the time of his death.

9.  AHRC Orders Number P07-924490, dated 6 July 2010, issued by HRC, St. Louis, MO, placed the FSM on the Retired List effective 1 August 2010.

10.  AHRC Orders Number P07-924490R, dated 10 November 2010, issued by HRC, St. Louis, MO, revoked Orders Number P07-924490 due to the FSM's death.

11.  The applicant provides a printout from DFAS, dated 2 August 2010, wherein it shows a summary of what the FSM would have received in retired pay effective 1 August 2010.  This printout shows a monthly deduction for SBP in the amount of $11.55.


12.  The applicant also provides a letter, undated, wherein HRC denied her request for an RCSBP annuity and stated the FSM's records showed he did not enroll in the RCSBP when he received his 20-year letter.

13.  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 and reaches 60 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she is entitled to SBP benefits as her deceased husband made an SBP election at the time he applied for retired pay. 

2.  By law and regulation, Soldiers who completed at least 20 years of qualifying service were issued a 20-year letter that informed them of their retirement eligibility and they were 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 or else wait until the individual applied for retired pay.  The FSM's records indicate he failed to make an election at that time, thereby effectively deferring his election until age 60.  

3.  Although the FSM made an SBP election for spouse coverage at the time he applied for retired pay, the SBP annuity would not be payable until 2 August 2010, the day after he reached the age of 60.  As the FSM died on 29 May 2010 prior to reaching the age of 60, there was no coverage at the time of his death.

4.  It also appears neither HRC nor DFAS was notified the FSM died prior to attaining the age of 60.  As a result, orders were published to place him on the retired list effective 1 August 2010 and DFAS prepared a summary of his retired pay account that included a deduction for SBP.  When HRC was notified of his death, orders were cut to revoke the orders which placed him on the retired list. As the FSM died prior to reaching the age of 60, he never received retired pay nor were any deductions for SBP made.  

5.  In view of the foregoing evidence, there is insufficient evidence to grant 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)                                         AR20110014575



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ABCMR Record of Proceedings (cont)                                         AR20110014575



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