BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015480 


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, correction of the records of her deceased husband, a former service member (FSM), to show she filed a claim for a survivor benefit annuity on the day following the FSM's death and payment of unpaid benefits from that date.

2.  The applicant states she was misinformed when she went to a military base in California and was told she should receive the Survivor Benefit Plan (SBP) annuity when she reached 60 years of age.

3.  The applicant provides:

* U.S. Army Human Resources Command (HRC) letter; addressed to her; dated 18 May 2011
* HRC letter addressed to her dated 29 June 2011
* DA Form 1559 (Inspector General Action Request)
* FSM's Certificate of Death
* DD Form 2656-7 (Verification for Survivor Annuity)
* Marriage Contract
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* Direct Deposit Sign-Up Form
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces)
* Two DD Forms 2788 (Child Annuitant's School Certification)
* Two Certificates of Live Birth

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's record shows he enlisted in the Regular Army on 12 May 1972 and served continuously through 23 January 1981.  He enlisted in the U.S. Army Reserve on 14 May 1981 and remained in a U.S. Army Reserve troop program unit status until his death.  He completed more than 25 years of qualifying service for retired pay.  The highest rank/grade he attained while serving was master sergeant/pay grade E-8.  His date of birth was 21 September 1951.

3.  The applicant provided a marriage contract which shows she and the FSM were married on 10 August 1975.

4.  On 30 October 1996, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60.  Paragraph 4 of this letter stated the FSM was entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP) established by Public Law 95-397.  It further stated this plan enabled him to provide an annuity for his spouse, and other eligible beneficiaries.  By law, he had only 90 calendar days from the date he received this letter to submit his     DD Form 1883 (Survivor Benefit Plan Election Certificate).  If he did not submit his election within 90 calendar days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60.  If he did not elect coverage and should die before age 60, his survivors would not be entitled to benefits. 

5.  The Board staff contacted the Survivor Benefits section at HRC to see if a DD Form 1883 with an election was submitted within the prescribed time frame.  It was determined the FSM did not submit a completed DD Form 1883 electing SBP coverage.

6.  The applicant provided a death certificate showing the FSM's marital status as married, the applicant as his spouse, and that he died on 29 April 2001.

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

8.  Public Law 95-397 enacted 30 September 1978 established the RCSBP and 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) defer or decline to make an SBP election until beginning to draw retired pay at age 60; (B) provide an annuity beginning on the retiree's 60th birthday (if death occurs before age 60), or upon retiree's death (if age 60 or older upon death); (C) provide an annuity beginning on the day after retiree's death, regardless of retiree's age at death.  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 applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.  

DISCUSSION AND CONCLUSIONS:

1.  The FSM received a 20-year letter, dated 30 October 1996, indicating he was eligible for retired pay at age 60.  There is no evidence he submitted a completed RCSBP election form within 90 calendar days; therefore, he was not entitled to elect survivor benefit coverage until he applied for retired pay at age 60.  The FSM died prior to age 60.  As such, his survivors are not entitled to survivor benefits.

2.  Regrettably, in view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20110015480



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ABCMR Record of Proceedings (cont)                                         AR20110015480



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