IN THE CASE OF:
BOARD DATE: 6 November 2012
DOCKET NUMBER: AR20120008876
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 late husband's record to show her entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits.
2. The applicant states her RCSBP claim was denied because her deceased husband did not complete and return an RCSBP election form within 90 days of receiving his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). However, it was impossible for her late husband to comply with the election requirement since he died prior to receiving his 20-year letter.
3. The applicant provides:
* self-authored statement
* marriage certificate
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* death certificate
* letter from U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 20 March 2012
* HRC ARPC Form 249-E (Chronological Statement of Retirement Points), dated 20 March 2012
* 5-page LexisNexis
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Although the applicant lists counsel, he did not render a request on the applicant's behalf.
2. Counsel provides no additional statement.
3. Counsel provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 5 October 1969.
2. On 27 February 1990, he enlisted in the Regular Army for a period of 6 years.
3. On 16 November 1997 following enlisted service in the Regular Army, he was appointed as a Reserve commissioned officer of the Army. He served in a variety of assignments in the U.S. Army Reserve (USAR) and attained the rank/grade of major/O-4.
4. On 26 March 2000, he married the applicant.
5. On 26 February 2011, the FSM died.
6. The FSM's record contains an ARPC Form 249-E, dated 20 March 2012, which indicates he was credited with 20 years and 2 months of qualifying service at the time of his death.
7. The FSM's record is void of a 20-year letter which would have informed him he had completed the required years of service and would be eligible for retired pay upon application at age 60.
8. The applicant provides a letter from the Chief, Retired Pay Branch, HRC, Fort Knox, KY, dated 20 March 2012, which informed her that her spouse never made an election or applied for retired pay; therefore, she was not entitled to any benefits.
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.
10. Title 10, U.S. Code, section 1448, provides for the application of the SBP/RCSBP. Subsection (f) provides for the coverage of survivors of persons who die when or before eligible to elect RCSBP annuity coverage. It states the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to provide a Reserve Component annuity and dies:
a. before being notified under section 12731(d) of this title that he/she has completed the years of service required for eligibility for Reserve Component retired pay; or
b. during the 90-day period beginning on the date he or she receives notification under section 12731(d) of this title that he/she has completed the years of service required for eligibility for Reserve Component retired pay if he/she had not made an election under subsection (a)(2)(B) to participate in the plan.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM died after attaining eligibility for a non-Regular retirement, but before his 20-year letter was issued; therefore, he was unable to make an RCSBP election. In accordance with Title 10, U.S. Code, section 1448, the Secretary shall pay an annuity to the surviving spouse of a person who is eligible to provide a Reserve Component annuity and dies before being notified under section 12731(d) of this title that he/she has completed the years of service required for eligibility for reserve-component retired pay.
2. In view of the foregoing, it would be appropriate at this time to grant the applicant's requested relief and to correct the FSM's record as recommended below.
BOARD VOTE:
____x___ ____x___ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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:
a. showing the FSM was issued a 20-year letter after his death;
b. showing the applicant applied for the RCSBP annuity in accordance with the provisions of Title 10, U.S. Code, section 1448, in a timely manner; and
c. paying her accordingly.
___________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) AR20120008876
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120008876
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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