IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110015514 


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 the FSM's record to show he made a timely election to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states the FSM was sick during that time and he was unable to complete the form in time.  She contends the FSM inquired about the form but he did not know how to complete it and he had to get someone to help him.  She tried to complete and return the form as quickly as she could.  She further states she believes the record to be unjust because the FSM served in the Army for
20 years and he was due this benefit.  He died before reaching age 60, so she is now entitled to what was due to him.

3.  The applicant provides:

* a letter to her from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (USAHRC), Fort Knox, KY
* a DD Form 2656 (Data for Payment of Retired Personnel)
* a DD Form 108 (Application for Retired Pay Benefits)
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* an APRC Form 249-E (Chronological Statement of Retirement Points) pertaining to the FSM
* 
the FSM's birth and death certificate
* their marriage license
* a Standard Form 1199A (Direct Deposit Sign-Up Form)
* a DD Form 2656-7 (Verification for Survivor Annuity)
* a DD Form 2788 (Child Annuitant's School Certification)
* a W-4P (Withholding Certificate for Pension or Annuity Payments)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 August 1951.  He and the applicant married on 
3 July 1978.

2.  On 12 November 1992, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued the FSM a 20-Year Letter.  The letter advised him that by law, he had only 90 calendar days from the date he received the letter to submit his SBP Election Certificate (DD Form 1883) and that if he did not submit his election within 90 calendar days, he would not be entitled to SBP coverage until he applied for Retired Pay at age 60.  The letter further advised him that if he did not elect coverage and should die before age 60, there would be no benefits for his survivors.

3.  Noncommissioned Officer Reports and the FSM's Chronological Statement of Retirement Points indicate the FSM continued to actively participate with his unit for approximately three years after receiving his 20-Year Letter.

4.  The FSM was transferred to the Retired Reserve on 8 May 1996.  He died on 2 April 2011.

5.  In a letter, dated 28 June 2011, the USAHRC, Retired Pay Branch, informed the applicant she was not entitled to survivor benefits because according to their records, the FSM never made an election.  She was advised to apply to this Board for a review of her case.

6.  The DD Form 2656 and DD Form 108 provided by the applicant are dated
18 February 2011.

7.  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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

8.  Before the law was amended as noted below, a member must have made the election within 90 days of receiving the 20-year letter or wait until he/she applied for retired pay and elected to participate in the standard SBP.  Failure to elect an option resulted in the default election of option A.

9.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  Failure to elect an option now results in the default election of option C.

10.  Public Law 105-261, established open enrollment periods (1 March 1999 through 25 February 2000 and 1 October 2005 through 30 September 2006) for members not participating to the fullest possible extent in RCSBP.  They could add children coverage and/or elect coverage if none was in effect.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be granted an RCSBP annuity because the FSM failed to send the election form under the RCSBP due to his illness, which resulted in his not having an election under the program, has been carefully considered.

2.  The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  Because he chose to defer his election to age 60, but died prior to attaining age 60, there was no coverage at the time of his death.

3.  The applicant's contentions and documents she provided were carefully considered.  However, the evidence of record shows the FSM continued to actively participate with his unit for approximately three years after receiving his 20-Year Letter.  This fact does not support the applicant's contention that the FSM was sick and unable to complete the necessary documentation.  Furthermore, the FSM was afforded opportunities to enroll in the RCSBP during the two open seasons and there is no evidence that he elected to do so, which further reinforces what appears to have been his decision to defer election until he reached age 60.
4.  It is unfortunate that at the time the FSM was afforded an opportunity to make an election, spousal concurrence was not required when a service member elected less than full coverage.  However, the fact that the law changed some 
years later does not nullify the FSM's decision to not submit his election at the time nor does it constitute an error or injustice.

5.  In view of the foregoing, there is no legal basis for granting the applicant's 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)                                         AR20110015514



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ABCMR Record of Proceedings (cont)                                         AR20110015514



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