IN THE CASE OF:
BOARD DATE: 31 July 2012
DOCKET NUMBER: AR20120000474
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 her husband's record to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
2. The applicant states:
* She is the surviving spouse of the FSM and when he received his letter of eligibility for retirement they discussed the SBP and it was her understanding she would receive a portion of his retired pay in the event of his death
* During his final stage in fighting lung cancer he reassured her she would receive his retired pay
* She was told she was not entitled to his retired pay because he did not complete the appropriate document for such election within 90 days of receiving this letter
* If her husband told her she would be entitled to his retired pay then she truly believes that he submitted the required form
* She has no reason to believe otherwise
3. The applicant provides:
* Undated letter from the U.S. Army Human Resources Command, Fort Knox, KY
* Chronological Statement of Retirement Points
* Marriage license
* Direct Deposit Sign-up Form
* DD Form 2656-7 (Verification for Survivor Annuity)
* Withholding Certificate for Pension or Annuity Payments
* Letter, dated 25 February 1992, from the Chief, Survivor Benefits, U.S. Army Reserve Personnel Center, St. Louis, MO
* Notification of Eligibility for Retired Pay at Age 60
* FSM's death certificate
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 24 January 1947. Having prior service in the
Regular Army, he enlisted in the U.S. Army Reserve (USAR) on 4 August 1973.
He married the applicant on 27 January 1979.
2. On 30 March 1990, the FSM received his 20-year letter. Paragraph 3 of this memorandum pertains to the RCSBP and the DD Form 1883 and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. This form also states "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits." Records at the U.S. Army Human Resources Command do not show the FSM ever made an election or applied for retired pay.
3. The FSM was assigned to the USAR Control Group (Reinforcement) on
8 May 1992. He was transferred to the Retired Reserve on 5 August 1994.
4. On 6 May 2010, the FSM died at the age of 63. The U.S. Army Human Resources Command confirmed he never applied for retired pay.
5. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
6. 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. Once a member elects either options B or C in any category of coverage, that election is irrevocable.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM did not make an RCSBP election in 1990 and he died at age 63 without having applied for retired pay.
2. By law the FSMs failure to elect RCSBP coverage under Option B or C operated to defer his election until such time as he turned 60 and applied for retired pay. Any decision to decline full spouse coverage would have required applicants notarized concurrence.
3. Although it is not clear why the FSM did not apply for his retired pay after turning age 60, it appears his delay was simply a matter of ill health and that he believed applicant, his spouse of over thirty years, would be entitled to an annuity upon application. It is thus appropriate as a matter of equity to show he made application for his non-regular retirement.
4. In view of the foregoing, the Army's records should be corrected to show the FSM applied for retired pay, elected SBP spouse coverage in the full amount on 24 January 2007, and returned the application to the appropriate office in a timely manner.
BOARD VOTE:
____x___ ____x___ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM applied for retired pay and elected SBP spouse coverage in the full amount, and returned the application to the appropriate office in a timely manner where it was processed in a timely manner to be effective upon his reaching age 60.
2. Defense Finance and Accounting Service should pay the applicant the accrued retired pay from the FSMs 60th birthday through his 6 May 2010 death plus the SBP annuity effective the day following minus any required SBP premium payments.
_______ _ __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) AR20120000474
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ABCMR Record of Proceedings (cont) AR20120000474
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