IN THE CASE OF:
BOARD DATE: 27 September 2012
DOCKET NUMBER: AR20120004865
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 records to show he enrolled in the Reserve Component (RC) Survivor Benefit Plan (RCSBP) and to be paid the annuity.
2. She states the FSM served in the U.S. Army for 21 years and 5 months. He took pride in his work and service to his country. She states he would have made the correct election for his family to receive his survivor benefits had he been properly counseled. She states, "he would not have left his benefits unprotected had he known that this form was necessary to be completed." She offers that this was an error in the paperwork.
3. She provides the following:
* Certificate of Marriage, dated 3 August 1981
* memorandum, Department of Crime Control and Public Safety, dated 20 June 1996, subject: Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* Orders 233-115, Department of Crime Control and Public Safety, dated 11 October 1996
* National Guard Bureau Form 22 (Report of Separation and Record of Service), effective 31 October 1996
* Certificate of Death, dated 2 August 2011
* DD Form 2656-7 (Verification for Survivor Annuity), dated 2 August 2011
* memorandum, Department of Crime Control and Public Safety, dated 11 August 2011, subject: SBP Annuity Claim for Beneficiary of [FSM], Deceased 2 August 2011
* Army National Guard (ARNG) Current Annual Statement, dated 11 August 2011
* ARNG Retirement Points Supplemental Detailed Report, dated 11 August 2011
* Standard Form 1199A (Direct Deposit Sign-Up Form), dated 15 August 2011
* Internal Revenue Service Form W-4P 2011 (Withholding Certificate for Pension or Annuity Payments), undated
* letter, U.S. Army Human Resources Command (HRC), dated 21 February 2012
CONSIDERATION OF EVIDENCE:
1. On 31 May 1975, the FSM enlisted in the Regular Army. He was honorably released from active duty on 30 May 1978. He enlisted in the ARNG on 14 June 1978. His date of birth is shown as 30 June 1955.
2. On 31 July 1981, the FSM and the applicant were married.
3. On 20 June 1996, the FSM received his 20-year letter. The SBP summary was listed as an enclosure to the letter.
4. The applicant's record is void of any evidence or forms to show he elected coverage under the SBP.
5. On 31 October 1996, the FSM was transferred to the Retired Reserve.
6. The FSM died on 2 August 2011. The death certificate lists his marital status as married and lists the applicant as his spouse.
7. On 11 August 2011, the North Carolina ARNG notified HRC of the death of the FSM. Although the letter references a DD Form 1883 (SBP Election Certificate) as an enclosure, the North Carolina ARNG has confirmed that none exists.
8. On 21 February 2012, the Chief, Retired Pay Branch, HRC, responded to the applicant's inquiry concerning her eligibility for an SBP annuity based on the death of the FSM. The representative said that upon review, they found that the FSM did not execute a DD Form 1883. Since he did not elect enrollment in the SBP, her request for annuity benefits was denied.
9. 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.
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 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.
DISCUSSION AND CONCLUSIONS:
1. There are no documents in the available records and none provided by the applicant which show the FSM made an election to participate in the RCSBP. All available information indicates the FSM did not make an election when he received his 20-year letter.
2. In the absence of evidence showing the FSM elected to participate in the RCSBP, there is no basis to now designate her as the beneficiary.
3. Regrettably, in view of the foregoing there is no basis for granting her request.
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) AR20120004865
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ABCMR Record of Proceedings (cont) AR20120004865
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