BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120002544 


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 through his attorney, in effect, correction of the records of his deceased brother, a former service member (FSM), to show the FSM enrolled in the Reserve Component Survivor Benefit Plan (RCSBP), option B (Deferred Annuity), naming his sister as a natural person with an insurable interest.

2.  The applicant states the sister of the FSM was denied SBP because the FSM did not submit his RCSBP Election Certificate in a timely manner.  He states the FSM accrued survivor benefits from his years in the service (1987 to 2010).

3.  The applicant provides:

* Applicant's Affidavit, dated 23 January 2012
* Letter of Administration, certified on 8 July 2011
* Certificate of Death, certified on 1 November 2010
* U.S. Army Human Resources Command (AHRC) Letter, dated 13 April 2011
* Attorney's Letter to AHRC, dated 11 May 2011
* DD Form 2656-7 (Verification for Survivor Annuity)
* Direct Deposit Sign-Up Form
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Army National Guard (ARNG) Retirement Points History Statement, dated 7 February 20132
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 
ARNG Honorable Discharge Certificate
* DD Form 2656-5 (RCSBP Election Certificate)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, award of SBP benefits to the FSM's sister.

2.  Counsel states:

* the FSM served in the ARNG from 1987 until he was honorably discharged on 29 January 2010
* the FSM received his 20-Year Letter on 19 February 2008, which stated he had 90 days to make a selection for a certain type of RCSBP coverage
* the FSM submitted his election certificate on 23 December 2009, after the 90-day period, and he died on 13 October 2010
* the FSM's sister filed a claim for survivor benefits and she was led to believe her claim was approved
* after the FSM's sister submitted all of the paperwork requested of her by AHRC, she received a letter stating that the FSM had submitted his election certificate beyond the 90-day deadline
* the FSM's sister was told she would not be receiving any benefits
* the FSM served for over 20 years and he accrued survivor benefits that he intended to pass on to his sister
* at the time the FSM received his 20-Year Letter he was having memory problems and headaches
* the RCSBP Election Certificate states "If you do not submit this form as required, your election, if any, will be determined by law"
* it is an injustice to deny benefits to the FSM's designated survivor based on his submission of the election certificate after the 90-day deadline

3.  Counsel provides the following copies:

* 20-Year Letter, dated 19 February 2008
* DD Form 2656-5, dated 23 December 2009
* AHRC Letter, dated 28 November 2011
* DD Form 149 (Application for Correction of Military Record), dated 23 January 2012

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 28 April 1969.  He enlisted in the ARNG for 8 years on 30 January 1987.  He completed training as a fighting vehicle infantryman.  He remained a member of the ARNG through continuous reenlistments and extensions.

2.  On 19 February 2008, the Missouri ARNG sent the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  The notification informed the FSM of the following:

* having completed the required years of service, he would be eligible for retired pay upon application at age 60
* he was entitled to participate in the RCSBP
* a Reserve Component member who was married would be automatically enrolled in the RCSBP under option C (Spouse and Child(ren)) coverage based on full retired pay, unless different coverage was selected within 90 days of receipt of the notification letter
* notarized spousal concurrence was required in order to decline full and immediate coverage for annuitants
* failure to meet the requirement would result in the retention of full coverage of the member's spouse and child(ren)
* the cost for participation would commence upon his receipt of retired pay at age 60

3.  On 23 December 2009, 10 months later, the FSM completed a DD Form 2656-5 naming his sister as a natural person with insurable interest, at the full retired pay rate.  The form indicated any annuity would commence, at the earliest, on what would have been his 60th birthday in the event of his death prior to age 60.  The FSM's signature was not witnessed.

4.  With 23 years of net service, the FSM was honorably discharged from the ARNG on 29 January 2010, and he was transferred to the Retired Reserve.

5.  The FSM died on 13 October 2010 at the age of 41.

6.  In response to a request from the FSM's sister and counsel, AHRC notified the FSM's sister that she must complete and returned specific documents in order to obtain benefits from her "spouse's service."  On 11 May 2011, the FSM's sister submitted, through her counsel, all of the specified documents, including a DD Form 2656-7.

7.  On 28 November 2011, AHRC notified counsel that the FSM had 90 days from the date of his 20-Year Letter (19 February 2008) to enroll in the RCSBP.  Counsel was told that the FSM's election certificate was received on                  23 December 2009, which was past the 90 days.  Counsel was told that if the FSM's sister believes that an error or injustice exists, she may petition this Board for further consideration.

8.  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.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  Premiums for insurable interest coverage are generally higher than for any other category of coverage.

9.  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.  An election must be received within 90 days of receiving one’s 20-year letter.

DISCUSSION AND CONCLUSIONS:

1.  The contentions made by the applicant and counsel have been noted.  The supporting evidence has been considered.

2.  The FSM was never enrolled in the RCSBP program because he failed to enroll within 90 days of receipt his 20-Year Letter.  There were no RCSBP premiums withheld from the applicant's retired pay because he was not eligible to receive retired pay until he reached age 60 and he died prior to that date.

3.  Neither the applicant nor counsel has shown error or injustice in this case.  Therefore, this 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)                                         AR20120002544





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ABCMR Record of Proceedings (cont)                                         AR20120002544



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