BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110015690 


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 reconsideration of her request to be awarded the annuity benefits of her deceased spouse, a former service member (FSM), under the Reserve Component (RC) Survivor Benefit Plan (SBP).

2.  The applicant states her reasons for requesting an exception to policy are as follows:

	a.  The FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter) was produced 7 months after he qualified for retirement.

	b.  A DD Form 1883 (SBP Election Certificate) was mentioned in the instructions that accompanied the FSM's 20-year letter, but was not listed as an enclosure on the 20-year letter.  Since a DD Form 1883 was not listed as an enclosure, it is apparent that her husband was not given the opportunity to review and sign it.

	c.  The 20-year letter indicated it was the commander's responsibility to present the letter and counsel the FSM.  She attests the unit never signed the transmittal letter (TL) acknowledging receipt and questions whether the commander delivered the letter or if it was simply mailed to their residence.

	d.  The FSM was a full-time technician at his unit and would have been available at almost any time for the commander's interview, but she does not see any evidence that anyone counseled or interviewed him.

	e.  She questions why the DD Form 1883 wouldn't it be included in a Soldier's retirement packet and require the Soldier's signature to confirm receipt of the form if the DD Form 1883 was so important.

	f.  She has been informed that RCSBP coverage is now automatic.  She did not sign anything showing she concurred with denying coverage.  She questions how her claim can be denied if the Army cannot prove her husband received the form.

	g.  The FSM's DD Form 93 (Record of Emergency Data) and SGLV-8286 (Servicemembers Group Life Insurance (SGLI) Election and Certificate) clearly show she was the primary beneficiary for monies in the event he had died earlier.

	h.  The FSM's National Guard retired pay was a big part of their life plans and he was confident she would be provided for.  It has been over a year since her husband's death and it has been a great financial hardship for her.

3.  She provides the following documents in support of her request; all of which were previously submitted and considered with her last application:

* marriage license
* death certificate
* 20-year letter, dated 30 June 1992
* TL for 20-year letter, dated 2 July 1992
* Maryland ARNG (MDARNG) Orders 236-101, dated 24 August 2005
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* MDARNG Notification to U.S. Army Reserve Components Personnel and Administration Center (RCPAC) (correctly known as U.S. Army Human Resources Command (HRC)) of Death of Retired Member, dated 12 April 2010
* letter from the HRC Transition and Separations Branch, dated 29 April 2010
* DD Form 2656-7 (Verification for Survivor Annuity), dated 4 May 2010
* DD Form 93, dated 27 January 2005
* SGLV Form 8286-E, dated 27 January 2005
* Standard Form 1199A (Direct Deposit Sign-Up Form)
* Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* 
letter from the HRC Transition and Separations Branch, dated 11 May 2010

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100016600 on 25 January 2011.

2.  The applicant did not provide any new evidence; however, she provides a new argument that the FSM was never provided a DD Form 1883 and afforded an opportunity to review and sign the form.  She also contends that in the absence of a written denial, she should have been automatically enrolled in the RCSBP.  These contentions were not previously reviewed by the Board.  Therefore, they are considered new arguments and warrant consideration by the Board.

3.  The FSM was born on 17 January 1952.  He enlisted in the MDARNG on 13 November 1971 and his retirement year ending date was established as 12 November annually.  The FSM married the applicant on 1 September 1973.

4.  The FSM attained 20 qualifying years of service and qualified for non-Regular retired pay on 13 November 1991.

5.  On 30 June 1992, the Military Personnel Officer of the State of Maryland, Military Department, Fifth Regiment Armory, sent a memorandum to the FSM wherein he expressed pleasure in forwarding the FSM notification of his eligibility for retirement pay at age 60 (20-year letter).  The personnel officer also informed the FSM that a DD Form 1883 was enclosed with this memorandum in order for him to make an election of survivor benefits and he was given a suspense date of 15 August 1992 to complete the DD Form 1883 and to return it to the MDARNG.  The FSM was also provided an information sheet to assist him in the completion of the DD Form 1883 and he was advised to see his battalion personnel services noncommissioned officer if he needed assistance completing the form.  The FSM was further advised that the original 20-year letter, plus a completed copy of the DD Form 1883, should be safeguarded by him with his other important papers.  "Two 'ORIGINAL' completed" DD Forms 1883 were to be returned to the Standard Installation/Division Personnel System (SIDPERS) Retirement Points Accounting System (RPAS) for distribution.  In closing, the FSM was strongly urged to attend pre-retirement briefings held at the Fifth Regiment Armory to inform him of his benefits and responsibilities and he was informed that spouses were also welcome to attend the briefings.

6.  On 30 June 1992, the Military Personnel Officer of the State of Maryland, Military Department, Fifth Regiment Armory, also issued a 20-year letter to the FSM.  The enclosures listed in this letter were as follows:

* NGB Form 23B (RPAS History Statement)
* SBP Summary
* NGB Pamphlet 600-5 (The National Guard Handbook for Retiring Soldiers and Their Families)

7.  The applicant provides a copy of a TL which shows Headquarters, State Area Command, acknowledged receipt of the FSM's 20-year letter on 2 July 1992.  This TL indicates the unit commander's responsibility to present the 20-year letter to the FSM, to provide counseling on the RCSBP, and to submit the appropriate personnel transactions pertaining to the FSM's election to SIDPERS RPAS not later than 17 August 1992.

8.  The applicant also provides a DD Form 93 which shows the FSM elected the "maximum" coverage in item 12a (SGLI) and item 12b (Insurance Companies/Policy Numbers) was left blank.  This form also shows the FSM designated the applicant as the principal beneficiary for his death gratuity and unpaid pay and allowances.

9.  The applicant provides a copy of an SGLI Form 8286-E which shows the FSM elected the maximum amount of coverage and named the applicant as principal beneficiary to receive a lump-sum payment.

10.  The applicant provides a copy of MDARNG Orders 236-101 which show the FSM was reassigned to the Retired Reserve on 30 September 2005.

11.  The FSM's NGB Form 22 shows he completed a total of 33 years, 10 months, and 18 days of creditable service for pay.  He was honorably discharged from the MDARNG on 30 September 2005 and transferred to the Retired Reserve.

12.  The death certificate provided by the applicant shows the FSM died on 2 April 2010 at 58 years of age.

13.  On 12 April 2010, the applicant notified HRC of her husband's death and applied for survivor's annuity benefits.

14.  On 29 April 2010, the RCSBP Functional Manager, Transition and Separations Branch, HRC, sent a letter to the applicant wherein she informed the applicant that she must complete and return DD Form 2656-7, Standard Form 1199A, and Internal Revenue Service Form W-4P in order to obtain benefits from the FSM's service.  The applicant was also instructed to provide copies of several official documents in order to verify her entitlements.

15.  On 11 May 2010, the Chief, Transition and Separations Branch, HRC,  sent a letter to the applicant wherein he informed her that there was no record on file which indicated the FSM elected to participate in the RCSBP.  As a result, her request for an annuity was denied.

16.  A DD Form 1883 is not on file with the Transition and Separations Branch of HRC or the Defense Finance and Accounting Service nor is one available for review by this Board.

17.  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 (and eligible to participate in RCSBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

* option A – elect to decline enrollment and choose at age 60 whether to start RCSBP participation
* option B – elect that a beneficiary receive an annuity if he or she dies before age 60 but delay payment of it until the date of the member's 60th birthday
* option C – elect that a beneficiary receive an annuity immediately upon their death if before age 60

18.  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.  In other words, failure to elect an option now results in the default election of option C.

19.  Title 10, U.S. Code, section 1447(6)(B)(i), states, "in the case of a person who would have become eligible for RC retired pay but for the fact that he died before becoming 60 years of age, such term means the amount of monthly retired pay for which the person would have been eligible if he had been 60 years of age on the date of his death, for purposes of an annuity to become effective on the day after his death in accordance with a designation made under section 1448(e) of this title, or in the case of a person who would have become eligible for RC retired pay but for the fact that he died before becoming 60 years of age, such term means the amount of monthly pay for which he would have been eligible if he had been 60 years of age on the date of his death.

DISCUSSION AND CONCLUSIONS:

1.  The FSM qualified for non-Regular retired pay on 13 November 1991.  The available evidence shows the FSM was issued a DD Form 1883 along with his 20-year letter on 30 June 1992 and was given a suspense date of 15 August 1992 to complete two original DD Forms 1883 and to return them to MDARNG for processing through SIDPERS RPAS.

2.  The evidence also shows the FSM was advised of the importance of this form, how to properly complete the form, and advised to safeguard it along with his other important papers.

3.  Although the applicant submitted evidence showing the FSM chose full SGLI coverage and named her as sole beneficiary, this alone does not prove his intent to elect coverage under the RCSBP, as they are entirely different programs.  Additionally, the fact that the applicant does not have a copy of the completed TL does not prove the FSM's commander failed to provide him with the appropriate documents and/or counseling.  The fact that every other document is available indicates the FSM was provided a complete packet and it is presumed that he was afforded the appropriate documents along with adequate guidance on how to complete the form in a timely manner.

4.  The applicant attests that she never declined participation in RCSBP in writing.  She further attests that as the result of a change in law, RCSBP enrollment is now automatic in cases where the spouse did not concur with declining enrollment and contends she should be eligible for RCSBP because of this law.  Unfortunately, the FSM was required to make an RCSBP election in 1992 and the law requiring written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60 was not enacted until 30 October 2000.  Additionally, the law is applicable to cases where 20-year letters have been issued after 1 January 2001.  Therefore, this law does not apply to this case.

5.  In view of the facts of this case, there does not appear to be an error or an injustice.  Therefore, there is no basis 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100016600, dated 25 January 2011.



      __________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)                                         AR20110015690



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ABCMR Record of Proceedings (cont)                                         AR20110015690



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