IN THE CASE OF:	  

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20120001810


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, entitlement to Survivor Benefit Plan (SBP) benefits based on the death of her husband, a former service member (FSM).

2.  The applicant states:

* she recently received a rejection letter for the military survivor benefits of Master Sergeant (MSG) Jxxxx L. Fxxxx
* after reviewing the rejection letter, she believes the rejection is incorrect
* the letter states the Reserve Component SBP (RCSBP) was established to provide coverage for the survivor of a Reserve Soldier who has completed 20 years of service for retired pay at age 60
* the paperwork included with her initial application clearly showed MSG Jxxxx L. Fxxxx started his service on 12/07/1971 and retired on 2/1/1994 with over 20 years of creditable service   
* the rejection letter further states MSG Jxxxx L. Fxxxx did not complete a DD Form 1883 (SBP Election Certificate)
* MSG Jxxxx L. Fxxxx did receive a packet (for application for retired pay) and was filling it out, but was unable to complete the process due to his unforeseeable death
* even if he had completed the paperwork, military policy states he could not have returned his application for retired pay for review until he reached the age of 59 and a half – unfortunately, MSG Jxxxx L. Fxxxx died just after his 58th birthday  

3.  The applicant provides:
* letter, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 5 December 2011
* State of Florida Certificate of Death
* State of Florida Marriage Certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
* Internal Revenue Service (IRS) Form W-4 (Employee's Withholding Allowance Certificate)
* Standard Form 1199A (Direct Deposit Sign-Up Form)
* Information Sheet for Approved Retired Pay
* memorandum, State of Florida, Department of Military Affairs, dated       10 February 1994, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement)
* DD Form 214MC (Report of Separation from Active Duty (1900))
* Honorable Discharge certificate, U.S. Marine Corps (USMC)
* NGB Form 22 (Report of Separation and Record of Service)
* Orders 059-021, Departments of the Army and Air Force, Florida National Guard, dated 28 March 1994
* Orders 109-033, Departments of the Army and Air Force, Florida National Guard, dated 6 June 1994 
* Honorable Discharge certificate, Florida Army National Guard (FLARNG)
* Retired Reserve certificate
* statement from State of Florida, County of Volusia, certifying the attached NGB Form 22 as a true and correct copy

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 12 October 1951.  He married the applicant on 19 May 1973.  

2.  On 14 July 1976, after prior service in the USMC, the FSM enlisted in the FLARNG.  He served through multiple reenlistments in the FLARNG, in a variety of assignments, and attained the rank/grade of first sergeant (1SG)/E-8.

3.  On 10 February 1994, the FLARNG issued the FSM 20-Year Letter.  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  The letter indicates the FSM was provided a "Survivor Benefit Plan Summary"; however, there is no direct language in the body of the letter related to the SBP.

4.  There is no documentation in the FSM's available records that shows he elected to participate in the RCSBP after receiving his 20-year letter in 1994.  

5.  On 31 March 1994, the FSM was discharged from the FLARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve).  His NGB Form 22 shows he was credited with the completion of 22 years, 3 months, and   25 days of total service.  

6.  On 16 December 2009, the FSM died at the age of 58.

7.  On or around 30 September 2011, the applicant made application for the FSM's SBP annuity.  On 5 December 2011, HRC denied her claim, citing the FSM's failure to enroll in the SBP.  This letter misstated the FSM's name, so on   9 April 2012 HRC issued the applicant a new, corrected denial letter referencing her late husband by his proper name.

8.  The applicant provides numerous documents that substantiate her late husband's entitlement to retired pay upon reaching age 60; however, none of these documents indicate he took action to enroll in the RCSBP by completing a DD Form 1883 within 90 days of receiving his 20-year letter.

9.  She also provides numerous documents that constitute her SBP annuity packet.  These documents appear to have been completed after the date of the FSM's death.  None provide an indication that he enrolled in the SBP when appropriate.

10.  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; (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 (20-year letter), or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive SBP annuity benefits based on the death of her husband was carefully considered.  

2.  By law and regulation, Soldiers who complete 20 or more years are issued a 20-year letter that informs them of their retirement eligibility and offers them the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  The FSM's records do not indicate that he elected to participate in the RCSBP and the applicant has not provided any evidence showing the FSM elected to participate in the RCSBP.

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

4.  Regrettably, there is an insufficient basis to grant relief in this case.

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)                                         AR20110012544



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ABCMR Record of Proceedings (cont)                                         AR20120001810



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