IN THE CASE OF:
BOARD DATE: 24 July 2012
DOCKET NUMBER: AR20110022779
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 military records to show her as his spouse with eligibility to receive a Reserve Components Survivor Benefit Plan (RCSBP) annuity and any other benefits offered to a fallen Soldier's widow.
2. The applicant states the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on or about 15 August 1996. At that time, the FSM was required to complete a DD Form 1883 (SBP Election) and name a beneficiary or decline to participate in SBP. His election is not filed in his official military personnel records (OMPF), in his "State" or in the U.S. Army Reserve (USAR) records at the U.S. Army Human Resources Command. Furthermore, the applicant states the DD Form 1884 (SBP Election Change) showing the FSM added the applicant after his divorce from his previous spouse is not on file at either location. The applicant contends the FSM told her he had updated his records and that she would draw his retired pay. She believes that through human error the documents the FSM submitted were lost and his records were never updated.
3. The applicant provides copies of:
* 20-year letter, dated 15 August 1996
* Marriage License and Certificate of Marriage, dated 1 August 1998
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 17 August 2000
* Certificate of Death, issued 19 August 2011
CONSIDERATION OF EVIDENCE:
1. The FSM's military records show that:
a. he was born on 7 December 1955;
b. he served in the U.S. Army National Guard from 21 January 1974 to
20 January 1981 and from 3 December 1982 to 17 August 2000;
c. he received his 20-year letter on or about 15 August 1996;
d. he was divorced from Becky Ann (not the applicant) on 23 January 1997; and
e. he was transferred to the USAR Control Group (Retired Reserve) effective 17 August 2000;
2. The FSM's military records do not show that he remarried after his divorce in 1997, or that he made any RCSBP election on or after receiving his 20-year letter.
3. The marriage certificate provided by the applicant shows the FSM and the applicant were married on 1 August 1998.
4. The Defense Finance and Accounting Service (DFAS) has no record of the FSM making an SBP election for the applicant.
5. The FSM's Certificate of Death shows he died on 5 August 2011, at 55 years of age.
6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If the member dies before reaching age 60, premiums are deducted from the annuity.
8. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000. 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.
9. The National Defense Authorization Act for Fiscal Year 2005 established an SBP Open Enrollment period to be conducted 1 October 2005 to 30 September 2006. Extensive publicity was given in Army Echoes.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the FSM's military records should be corrected to show that she was his spouse, she was eligible for an RCSBP annuity, and she should receive any other benefits due as his widow.
2. The available evidence of record clearly shows the FSM was married to a person other than the applicant when he received his 20-year letter. However, there is no evidence in his military records showing he ever made an RCSBP election. Furthermore, the FSM was divorced in 1997, and there is no evidence showing the FSM updated his military records to show that he married the applicant in 1998.
3. Though there were two open enrollment seasons after his last marriage and prior to his death in 2011, there is no evidence showing the FSM ever attempted to make an election.
4. The FSM died prior to attaining age 60 and eligibility to receive retired pay. Because there is no evidence to show he had made an RCSBP election for immediate coverage under Option C, and made no open season election, there was no coverage in effect at the time of his death.
5. In view of the above, the applicant's request 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 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) AR20110022779
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110022779
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