IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120006493 


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, the record of her deceased spouse, a former service member (FSM), be corrected to show she was the designated annuitant of his Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states the file of her late spouse is missing a DD Form 1883 (SBP Election Certificate) or a DD Form 2656-5 (RCSBP Election Certificate).  She has desperately tried to locate them, but could not find them.  She believes the FSM failed to fill out the forms for the RCSBP.  

3.  The applicant provides the FSM's:

* 1972 discharge orders
* Notification of Eligibility for Retired Pay at Age 60 letter
* Armed Forces Reserve Medal memorandum
* Enlisted Qualitative Retention Board Recommendation for Retention/Non-retention memoranda
* U.S. Army Reserve (USAR) Control Group (Retired) memorandum
* Meritorious Service Medal orders and certificate
* USAR Identification Card and Selected Service Registration Card
* Dissolution of Marriage Judgment from Exxxxxxxx Rxxx, her lawyer's letter, and Stipulated judgment
* Statement of Service
* Death Certificate

* Army National Guard (ARNG) Retirement Points History Statement
* Standard Form 180 (Request Pertaining to Military Records)
* Marriage License
* Letter from the Army Review Boards Agency
* Letters from the U.S. Army Human Resources Command (HRC), dated in February and March 2012
* W-4P (Withholding Certificate for Pension or Annuity Payments) and Direct Deposit Sign-Up Form
* DD Form 2656-7 (Verification for Survivor Annuity)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 2 August 1935.  His military records show he enlisted in the ARNG on 30 November 1953 and was honorably discharged on 8 September 1972.  He enlisted in the USAR on 30 November 1972.  

2.  On 30 January 1976, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (Letter).

3.  On 4 March 1981, the FSM was notified of his non-selection for retention.  He was honorably released from his USAR unit and transferred to the Retired Reserve with an effective date of 5 February 1981.

4.  The applicant submits a copy of dissolution of marriage judgment between the FSM and an individual named Exxxxxxx Rxxx, dated 24 June 1987.  She also submits a partial copy of a stipulated judgment which does not appear to designate an RCSBP annuity for Exxxxxxx Rxxx.

5.  The FSM reached age 60 on 2 August 1995.

6.  The applicant further submits a copy of their certificate of marriage that shows she was married to the FSM on 13 May 2005.

7.  The FSM died on 14 September 2008.  

8.  In a letter, dated 27 February 2012, upon notification of the FSM's death, HRC officials provided the applicant instructions and forms to be completed pertaining to her claim for all pay in arrears to the date of the FSM's death.

9.  In a letter, dated 23 March 2012, the Chief, Retired Pay Branch, advised the applicant of the following:

	a.  The RCSBP was established to provide coverage for the survivor of a Reserve Soldier or former Soldier who had completed 15/20 years of service for retired pay at age 60.

	b.  Upon review of the FSM's file, they found that he had not executed a 
DD Form 1883.  The FSM received his Notification of Eligibility for Retired Pay at Age 60 letter on 30 January 1976.  He had two opportunities to apply for RCSBP coverage.  The first was within 90 days after receipt of his eligibility letter and again on his 60th birthday when applying for his retired pay benefits on DD Form 2656 (Data for Payment of Retired Personnel).  Since he failed to apply at either time, no one was entitled to an annuity.  She could apply to the Army Board of Correction of Military Record for a review of her case.  

10.  A staff member of the Defense Finance and Accounting Service - Retired Pay section verified the FSM did not have a DD Form 1883 (SBP Election Certificate) or a DD Form 2656 (Data for Payment of Retired Personnel) on file at DFAS-Retired Pay section.  

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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.  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 deferred election until he applied for retired pay and elected to participate in the standard SBP.  An Open Season was established from 1 October 1978 – 30 September 1979; later extended to         31 March 1980.

12.  Public Law 108-374, enacted 28 October 2004, established open enrollment period (1 October 2005 to 30 September 2006) for members not participating to the fullest possible extent.  

13.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was issued a letter notification of eligibility for retired pay at age 60 on 30 January 1976.  He was transferred to the Retired Reserve effective 5 February 1981.  There is no evidence of record he executed an SBP election at the time of the first RSCBP open season.  

2.  The FSM and the applicant were married on 13 May 2005.  There is no evidence he ever made an RCSBP election, added his wife (the applicant) within a year of their marriage, or sought to enroll her in the SBP during an open season enrollment period.

3.  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.  The applicant's contentions and the documents she provided were carefully considered.  However, based on the foregoing, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to an annuity under the RCSBP. 

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)                                         AR20120006493



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006493



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1