IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120010058 


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 his wife, a former service member (FSM).

2.  The applicant states:

* His late spouse, the FSM, was never notified that she had to make an election of retirement benefits; she died at age 46
* Although she kept meticulous records, there was no reference to a retirement letter or retirement election
* Upon contacting the Michigan and the Georgia Army National Guard (MIARNG/GAARNG), there was no validation that she received her 20-year letter
* Officials in both states indicated that mistakes were often made in recording retirement points and notifying retirees
* According to officials at the U.S. Army Human Resources Command (HRC), she only completed 19 years, 10 months, and 23 days of qualifying service
* Her Retirement Points Accounting Management (RPAM) System on the other hand shows 21 years, 10 months, and 23 days of qualifying service
* Either way, she was never appropriately informed of her retirement or benefit options in that a 20-year letter was never distributed
* Despite the GAARNG having prepared her retirement documentation in October 1996, she continued to serve into 1997
* 
Her transfer between the ARNG and the U.S. Army Reserve (USAR) further complicated things

3.  The applicant provides:

* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* National Guard Bureau (NGB) Form 23C (ARNG Retirement Points History Statement)
* Letter, dated 21 October 2011, to HRC
* Letter, dated 22 November 2011, from HRC to the applicant's Member of Congress
* Letter, dated 21 October 2011, from the Defense Finance and Accounting Service (DFAS), to the applicant's Member of Congress
* Letter, dated 21 December 2011, from Prudential - Office of Service-members' Group Life Insurance
* Orders 030-339, dated 27 February 1997 (annual training)
* DA Form 67-8 (U.S. Army Officer Evaluation Report) for the period 940521 - 950521 
* DA Form 67-8, for the period 940831 - 950707, pertaining to another officer
* Notarized personal statement, dated 27 March 2012, from a retired U.S. Navy commander
* Notarized personal statement, dated 3 April 20112, from the applicant
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 23-1, dated 20 November 1990 (promotion orders)
* NGB Special Orders Number 130 AR, dated 2 November 1995 (change state from MI to GA)
* NGB Special Orders Number 78 AR, dated 20 September 1994 (promotion to lieutenant colonel (LTC))
* Appointment in the MIARNG Certificate
* Orders 173-047, dated 10 August 1995 (orders to annual training)
* Certificate, dated 26 April 1991, showing award of the Army Commendation Medal
* Permanent Orders 50-49, dated 29 January 1991, attachment to U.S. Central Command, Southwest Asia
* Memorandum, dated 1 May 1991, authorizing her award of the Southwest Asia Campaign Medal
* Letter of recommendation
* Appointment memorandum
* Certificate of death
* Letter from the applicant's Member of Congress

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show she was born on 26 April 1954.  
2.  Having had prior enlisted service (23 August 1972 to 4 June 1976), the FSM's records show she was appointed as a Reserve commissioned officer of the Army in the rank of first lieutenant, Army Nurse Corps (ANC), and executed an oath of office on 5 June 1976.

3.  She entered active duty on 12 August 1976, served as a medical surgical nurse, and she was promoted to captain.  She was honorably released from active duty on 11 August 1981 and she was transferred to the USAR Control Group (Reinforcement).  

4.  She was appointed from the USAR in the MIARNG, ANC, in the rank of major and executed an oath office on 30 September 1988. 

5.  She was ordered to active duty on 21 November 1990 and subsequently served in support of Operation Desert Shield/Storm from 12 January to 3 May 1991.  She was honorably released from active duty on 25 May 1991.  

6.  She was promoted to LTC on 1 September 1994.  The NGB issued her Federal recognition for this promotion.

7.  On 23 August 1995, she voluntarily transferred to the GAARNG.  Additionally, on 2 November 1995, the NGB published Special Orders Number 130 AR extending Federal recognition for her transfer. 

8.  On 31 October 1996, the GAARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter:

* Notified her that she has completed the required years of service and would be eligible for retired pay upon application at age 60
* Provided her with her most recent NGB Form 23B (Retirement Points Accounting System History Statement)
* Provided her information regarding participation in the Reserve Component SBP (RCSBP)

9.  There is no evidence in the FSM's records that indicates she elected to participate in the RCSBP during her 90-day window of opportunity in 1996.  Additionally, there is no evidence in the available record that shows the ARNG 

notified the applicant that the FSM either declined coverage or did not make an election, as it was not required by law.

10.  The FSM's service record is void of official orders transferring her to the Retired Reserve.

11.  On 17 May 2000, the FSM died at the age of 46.

12.  Subsequent to her death, it appears the applicant contacted HRC and DFAS through his Member of Congress regarding the SBP annuity.  In their responses:

	a.  DFAS officials notified the Member of Congress on 21 October 2011, that they had contacted officials at HRC who determined the FSM reviewed her records and determined there was no election for the RCSBP made by the FSM.  

	b.  HRC official notified the Member of Congress on 22 November 2011 that the FSM had completed the required years of service to qualify for retirement and that by law she would not receive retired pay until age 60 (upon application).  Additionally, a review of her records determined there was no record of the FSM making an RCSBP election within 90 days from the date on her retirement letter. 

13.  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.  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 wait until he/she applied for retired pay and elected to participate in the standard SBP.  Three options are available: 

* Option A, elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C, elect that a beneficiary receives an annuity immediately upon their death if before age 60.  

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are 

offered 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 she elected to participate in the RCSBP and the applicant has not provided any evidence showing that she elected to participate in the RCSBP.

2.  The FSM, by not responding to her 20-year letter notification of RCSBP eligibility, effectively deferred her election to age 60.  As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.  Additionally, since she chose to defer her election to age 60, but died prior to age 60, there was no coverage at the time of death.

3.  The total number of qualifying years of service completed by the FSM towards non-regular retirement is not in question.  Her October 1996 NGB Form 23B clearly shows she completed 21 years, 10 months, and 23 qualifying years of service.  The FSM was a LTC.  She knew or should have known when she completed at least 20 qualifying years of service and issued a 20-year letter.  

4.  Even if the FSM was unaware of her 20-year letter, the decision to enroll in or disenrollment from the RCSBP/SBP is a personal decision.  The contention that she would have elected RCSBP immediate coverage is speculative in the absence of evidence supporting this contention.  Not every Soldier elects immediate coverage upon receiving their 20-year letter. 

5.  The law is clear.  The member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP Regretfully, the applicant is not entitled to the requested relief.

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)                                         AR20120010058



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ABCMR Record of Proceedings (cont)                                         AR20120010058



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