BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120010527 


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 his record be corrected to allow him to elect Reserve Component Survivor Benefit Plan (RCSBP) coverage for his spouse.  

2.  The applicant states that between April and July 2000, he was relocating from North Carolina to Virginia and during this timeframe he never received any indication that his 20 year letter was mailed to his address in North Carolina.  He further states he cannot confirm that his address was updated.  He indicates he did not receive his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) until sometime in 2003.  He claims when he received his 20 year letter in 2003, he was told not to worry about it by his unit administrator, who informed him the regulation had changed and that Option C (Immediate Coverage) would be automatic if he submitted no form.  

3.  The applicant provides a self-authored statement, leave and earnings statements (LESs), and marriage certificate in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was commissioned a second lieutenant in the U. S. Army Reserve (USAR) on 28 February 1977.  He continuously served in various positions in the USAR until being transferred to the Retired Reserve in the grade of colonel/0-6 on 24 March 2012.  

2.  On 3 March 2000, the applicant married his spouse.  

3.  The applicant’s Army Military Human Resource Record (AMHRR), formally known as the Official Military Personnel File (OMPF), contains a memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), issued by the USAR Personnel Command, St. Louis, Missouri on 4 May 2000.  

4.  The ARPC Form 249-E (Chronological Statement of Retirement Points) on file in the AMHRR shows he completed 20 qualifying years of service in 1999 and there is no indication that there were any issues related to his years of service during this period.  

5.  In the 20 Year Letter, the applicant was informed that he was entitled to participate in the RCSBP and that by law, he had 90 calendar days from the date he received the letter to submit a DD Form 1883 (Survivor Benefit Plan (SBP) Election Form).  He was further advised that if he did not submit his election within 90 days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60 and that if he should die before reaching age 60, his survivors would not be entitled to benefits.  

6.  There is no indication that the applicant’s 20 Year Letter was not added to his AMHRR at the time it was issued, or that the applicant did not have access to his AMHRR during the period he was moving from North Carolina to Virginia.  

7.  A review of the Defense Finance and Accounting Service (DFAS) shows the applicant was issued his 20 year letter on 4 May 2000, and that he failed to submit a RCSBP election within 90 days as was required by law.  DFAS advises that the applicant will be able to cover his spouse when he applies for retired pay at age 60.  

8.  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 RCSBP 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.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 (20-Year Letter) or else wait until he/she applied for retired pay at age 60 and elect to participate in the standard SBP.  



9.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60, and the default election when an election form was not submitted or is not on file is Option C.  This law is applicable to cases where the 20 year letter was issued after 1 January 2001.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his RCSBP option to immediate coverage under Option C as opposed to no coverage has been carefully considered.  However, while the applicant’s sincerity regarding his claim that he did not receive his 20 year letter until 2003 is not in question, there is no independent evidence of record to support this assertion.  

2.  The evidence of record confirms the applicant’s 20 year letter was issued on 
4 May 2000, and posted to his AMHRR.  In addition, the ARPC 249-E on file confirms he completed 20 years of qualifying service for retired pay at age 60 in 1999, and there is no indication that there were any issues related to his years of service at the time. 

3.  In addition, there is no indication that the applicant did not have access to his AMHRR when the 20 year letter was issued or at any time during this period, or that he did not did not receive the 20 year letter at the time it was issued.  Absent evidence to the contrary, it is just as likely that the applicant, being recently married and moving from one location to another, simply did not comply with the SBP election requirements of the letter.  

4.  Absent any evidence of error or injustice in the retirement eligibility notification process, there is an insufficient evidentiary basis to support granting the requested relief as a matter of equity contrary to the law in effect at the time.  

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)                                         AR20120010527



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ABCMR Record of Proceedings (cont)                                         AR20120010527



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