IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110014920 


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, that she and her sister be designated as the annuitants of their deceased mother's, a former service member (FSM), Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states that their mother did not have a spouse and she would have requested her benefits be paid to her children.  It has been brought to her attention that she and her sister may be entitled to annuity benefits owed to their mother.

3.  Her mother entered the armed services in 1979 and after 20 years of service she retired on 11 August 1999.  After a lengthy illness she passed away on 3 August 2007.  At the time of her death they contacted the Army and were informed that there were no insurance benefits due them.  However, they were not informed that their mother would have received military benefits once she turned 60 years old and they may be entitled to this benefit.  

4.  She provides:

* her and her sister’s birth certificates
* mother’s USAR (U.S. Army Reserve) Reenlistment of Soldiers Demobilized from Desert Storm Email/Command Bulletin
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Notification of Eligibility for Retired Pay at Age 60 memorandum
* Death certificate
CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 13 June 1952.  Her military records show she enlisted in the USAR, Women’s Army Corps, on 18 October 1975.  

2.  She was ordered to active duty in support of Operation Desert Shield/Storm and entered active duty on 21 November 1990.  She was honorably released from active duty on 29 May 1991 and she was transferred to a Reserve unit.

3.  On 11 August 1999, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 memorandum.  Paragraph 4 of the memorandum stated:

You are entitled to participate in the RCSBP established by Public Law 95-397.  This plan enables you to provide an annuity for your spouse, and other eligible beneficiaries.  By law, you have only 90 calendar days from the date you received this memo to submit your DD Form 1883 (SBP Election Certificate).  If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefits coverage until you apply for retired pay at age 60.  If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits.  

4.  There is no indication in the FSM's service records that she made an election within 90 days of receiving her 20-year letter to enroll in the RCSBP.

5.  She was reassigned to the Retired Reserve on 22 March 2000.

6.  The Soldier Management System, located on the Army Human Resources Command Integrated Web Service (IWS), shows on 6 December 2006, the FSM was advised that she could not receive retired pay until age 60.  It was also noted that she was not enrolled in RCSPB.   

7.  She died on 3 August 2007.  She would have reached age 60 on 13 June 2012.

8.  The applicant’s date of birth is 27 November 1974 and she is currently 38 years old.  Her sister’s date of birth is 18 December 1981 and she is currently 31 years old.

9.  A staff member of the Defense Finance and Accounting Service (DFAS) - Retired Pay section verified that the FSM did not have a DD Form 1883 or a DD Form 2656 (Data for Payment of Retired Personnel) on file at DFAS-Retired Pay section.  The only document located was her 20 year letter from the USAR.

10.  A staff member of the DFAS – Cleveland Center, verified that the FSM was not receiving retired pay and there was no SBP election on file with that office.

11.  DD Form 1883 Reverse explained that if Option A was elected the member was declining to make an election at that time and acknowledged he/she would remain eligible to make an election for coverage at age 60.  If the retiree does not elect option B or C at that time, and should die before age 60, the survivors would not receive benefits under Public Law 95-397.  

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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.  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 deferred election until he applied for retired pay and elected to participate in the standard SBP.

13.  Public Law 105-261, established an open enrollment period from 1 March 1999 to 25 February 2000 for members not participating to the fullest possible extend in RCSBP.  They could add children coverage and/or elect coverage if none was in effect. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was issued a 20-Year Letter on 11 August 1999.  She was transferred to the Retired Reserve on 22 March 2000.

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 she elected to participate in the RCSBP and the applicant has not provided any evidence showing that the FSM elected to participate in the RCSBP.

3.  The FSM, by not responding to her 20-year letter notification of RCSBP eligibility, effectively deferred her election to age 60.  Since she chose to defer her election to age 60, but died prior to age 60, there was no coverage at the time of her death.
4.  The applicant's contentions and documents she provided were carefully considered.  However, the evidence of record shows the FSM chose to delay her RCSBP election until she applied for retired pay.  

5.  Based on the foregoing, there is no legal basis to grant the applicant relief.  Unfortunately, she and her sister are not entitled to an annuity under the RCSBP. 

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)                                         AR20110014920





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ABCMR Record of Proceedings (cont)                                         AR20110014920



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