IN THE CASE OF:	 

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110019774 


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 his late wife, a former service member (FSM), to show she elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for spouse under option C, allowing him to receive the annuity effective the date of her death.

2.  The applicant states the FSM's application to elect spousal coverage under the SBP was rejected because it exceeded the 90-day time period.  The letter that arrived to notify the FSM of the time period to complete the RCSBP election came while she and the applicant were on duty.  Their 11-year old son signed for the package, but never delivered the paperwork.

3.  The applicant provides:

* three self-authored statements
* Death Certificate, dated 28 June 2003
* License and Certificate of Marriage, dated 2 April 1983
* letter from the FSM
* letter, dated 4 June 1998
* return receipt
* Certificate of Live Birth, dated 18 August 1985
* Birth Certification, dated 18 May 1988
* DA Form 638 (Recommendation for Award), dated 18 August 2003
* DD Form 2656-7 (Verification for Survivor Annuity), dated 21 December 2011
* Internal Revenue Service (IRS) Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 2011
* Standard Form 1199A (Direct Deposit Sign-up Form), dated 21 December 2011
* letter from the U.S. Army Human Resources Command (HRC), dated 5 January 2012

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 was born on 31 January 1950.  She enlisted in the U.S. Army Reserve (USAR) on 1 October 1979 and held several military occupational specialties throughout her military career.  She served in Charlestown, SC, and in Decatur, GA.

3.  The applicant provides copies of his marriage license and certificate which show he married the FSM on 2 April 1983.

4.  The applicant provides a birth certificate which shows he and the FSM were the biological parents of J____ D____ H____, their son, who was born on 18 August 1985.

5.  The applicant provides a birth certificate which shows he and the FSM were the biological parents of M____ D____ H____, their daughter, who was born on 18 May 1988.

6.  The applicant provides a letter to the FSM from the U.S. Army Reserve Personnel Command (AR-PERSCOM), dated 4 June 1998.  This letter stated:

	a.  the 20-year letter and SBP election package had been sent to her by certified mail and was signed for by J____ H____;

	b.  the certified receipt told the analyst working the FSM's case that she received the 20-year letter and the necessary information to complete the DD Form 1883 (SBP Election Certificate);

	c.  the letter went on to say that if the information was in error, the FSM should call or fax AR-PERSCOM so that a copy of the FSM's 20-year letter and SBP booklet could be submitted for review; and

	d.  the attachment shows the certified package was signed for by J____ H____, the FSM's 11-year old son.

7.  The applicant provides a copy of an undated letter of reply written by the FSM to AR-PERSCOM in which the FSM stated:

	a.  the letter was in reference to ARPERSCOM's correspondence to her, dated 4 June 1998, concerning her 20-year letter and the necessary information to complete the DD Form 1883;

	b.  her son, J____ H____, signed for the package that delivered the 20-year letter and SBP package; however, the FSM had never seen the package nor did the child remember ever receiving or signing for it;

	c.  a letter she received stated the original package was dated as received on 15 August 1997; however, during this time she was away from home performing her 2-week USAR annual training; and

	d.  she was unaware the letter had arrived until her husband received a letter in January 1998 informing him he would not be entitled to any benefits due to the fact that she did not respond to the original package.

8.  By letter dated 4 June 1998, AR-PERSCOM responded to the FSM, informing her that a certified mail receipt indicated she had received her 20-year letter and the necessary information to complete her DD Form 1883.  It also stated, “However, if this information is in error, please phone or fax me so that I may submit a copy of your Letter of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) and the Survivor Benefit Booklet for your review.”

9.  The applicant provides a death certificate which shows the FSM died on 29 June 2003.

10.  The applicant provides a copy of a DD Form 2656-7, dated 21 December 2011.  This form shows he attempted to claim SBP coverage for spouse.

11.  He submits a copy of his IRS Form W-4P and Standard Form 1199A as evidence.

12.  The applicant provides a letter from HRC, dated 5 January 2012.  This letter is in reply to his inquiry concerning his eligibility for the SBP annuity based on the FSM's service.  The letter stated, essentially, his request for RCSBP coverage was denied because the FSM did not make the RCSBP election within the allotted 90 days and would not have been eligible for retired pay until she reached age 60.  Further, according to HRC's records, the FSM never made an election or applied for retired pay.

13.  The FSM would have reached age 60 on 31 January 2010.

14.  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 waived election until the member applied for retired pay and elected to participate in the standard SBP.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows a member of the FSM's household received and signed for the certified mail containing her 20-year letter and RCSBP packet in 1997.  The FSM wrote to AR-PERSCOM in 1998 to seek assistance in submitting her RCSBP application because she missed the 90-day window.  She reported that although the receipt was apparently signed by her 11-year old son, she was performing her 2-week USAR annual training at the time and never received it.

2.  There is no indication that she pursued the issue by making further inquiries even after receiving AR-PERSCOM’s 4 June 1998 response to her inquiry.  Additionally, HRC's records show the FSM never made an RCSBP election.  Unfortunately the FSM died several years later before reaching age 60.

3.  In 1997, when a Reserve Soldier declined to make an election or missed the 90-day window for submission, the election automatically rolled into option A.  If a Reserve Soldier elects option A (defer or decline) and dies before age 60, his or her eligible survivors will receive no SBP annuity.  If a Reserve Soldier elects option A (defer or decline) and lives until age 60, he or she will be given an opportunity then to enroll in the standard SBP.

4.  Unfortunately, due to the fact that the FSM failed to apply for the RCSBP within 90 days of receiving her 20-year letter and there is no record of her pursuing RCSBP coverage after June 1998, the applicant's requested relief should be denied.

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 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)                                         AR20110019774



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ABCMR Record of Proceedings (cont)                                         AR20110019774



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