IN THE CASE OF:
BOARD DATE: 17 May 2012
DOCKET NUMBER: AR20110014820
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 her husband's record to show her as the designated authorized beneficiary of a Survivor Benefit Plan (SBP) annuity.
2. The applicant states her deceased husband declined to make a Reserve Component SBP (RCSBP) election until he turned age 60 and then he declined to participate in the SBP. However, he did not make the election within 90 days of receiving his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). She believes he should have been automatically enrolled in the SBP and she should be receiving an SBP annuity as his surviving spouse.
3. The applicant provides:
* A letter to the FSM from the Minnesota Army National Guard (MNARNG), dated 13 March 2008, notifying him his SBP election had not been received
* The FSM's 20-year letter, dated 3 July 2007
* The FSMs National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), dated 3 July 2007
* The FSMs SBP Benefit Plan Election, dated 15 November 2007
* A letter to the applicant from the MNARNG, dated 15 November 2007, notifying her of the available SBP options
* A DD Form 2656-5 (Reserve Component SBP (RCSBP) Election Certificate), dated 3 December 2007
* A DD Form108 (Application for Retired Pay Benefits) dated15 November 2007
* Orders 171-1014, issued by Joint Forces headquarters, - Minnesota, St. Paul, MN, dated 20 June 2007, transferring the FSM to the Retired Reserve
* A memorandum, subject: Retention Beyond Age 60 Waiver (SFM's name, social security number, grade), dated 11 October 2005, retaining the FSM beyond age 60
* A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 11 December 2006, extending his expiration of term of service (ETS) until 1 July 2007
* The FSMs State of Minnesota Death Certificate
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 30 October 1946. He was serving in the pay grade of E-7 when his 20-year letter was issued on 3 July 2007, and he had already turned age 60. The letter notified the FSM that he had 90 days in which to make an RCSBP election and that failure to do so would result in his being automatically enrolled under Option C, spouse and children coverage based on full retired pay.
2. On 30 June 2007, the FSM was discharged from the MNARNG and he was transferred to the Retired Reserve. Having already completed his required service and having been issued his 20-year letter on 3 July 2007, and having already turned age 60, the FSM was immediately eligible for non-regular retired pay and qualified as a standard annuity participant, rather than a Reserve Component Annuity participant.
3. On 15 November 2007, the FSM submitted his Application for Retired Pay benefits to be effective 30 June 2007.
4. On 3 December 2007, the applicant and the FSM signed a DD Form 2656-5 electing Option A, declining to make an election until age 60.
5. The FSM was not enrolled in the SBP and he passed away on 6 November 2008 at the age of 62.
6. Information received from officials at the Defense Finance and Accounting Service (DFAS) indicates there was no evidence at that agency to show when the FSMs 20-year letter was issued. Accordingly, the declination of participation in the SBP was accepted.
DISCUSSION AND CONCLUSIONS:
1. Notwithstanding the FSM's and the applicants declination to make an SBP election until age 60 in December 2007, the FSM was issued his 20-year letter on 3 July 2007. He had been transferred to the Retired Reserve on 30 June 2007 and he had already reached age 60. The law requires that he decline SBP coverage with spouse concurrence before becoming eligible for retired pay.
2. The FSM did not decline SBP in a timely manner.
3. Accordingly, action should be taken to correct the FSMs record to show he was automatically enrolled in the RCSBP under full spouse coverage, due to failure to timely decline SBP with spousal concurrence before the first day for which he was eligible for retired pay.
BOARD VOTE:
___X____ ___X ___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was automatically enrolled in the SBP under full spouse coverage due to failure to timely decline SBP with spousal concurrence before the first day on which he was eligible for retired pay and that the applicant be paid an SBP annuity effective the day after the FSMs death less any premiums owed.
_______ _ 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) AR20110014820
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ABCMR Record of Proceedings (cont) AR20110014820
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