IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120013152 


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 payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband.

2.  The applicant states the FSM received his notification of eligibility for retired pay at age 60 (20-year letter) sometime after 16 October 1995.  He completed a DD Form 1883 (SBP Election Certificate) and signed it on 4 November 1995 which was the first drill assembly after receiving the letter.  His unit failed to submit his DD Form 1883 in a timely manner.  The form was not processed by the State Area Command (STARC), Illinois Army National Guard (ILARNG), Personnel Service Branch (PSB), until 29 March 1996, and dated-stamped on 
5 April 1996.

3.  She believes PSB personnel (master sergeant (MSG) DB) received the form and added her signature as a witness in section VI (Signatures) to correct the form.  However, the date by her name is clearly in her handwriting and not the FSM's.  The date on the back of the form (4 November 1995) is clearly his handwriting and well within the 90-day window for completing the form.  His paperwork was completed and turned in after the suspense date through no fault of his own.

4.  The applicant provides:

* 20-year letter, dated 16 October 1995
* DD Form 1883, dated 29 March 1996
* Marriage Certificate, dated 23 August 1975
* Death Certificate, dated 3 January 2012
* DD Form 2656-7 (Verification for Survivor Annuity), dated 27 April 2012
* Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 14 March 2012
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), dated 2 March 2012
* Standard Form (SF) 1199A (Direct Deposit Sign-up Form), dated 
26 March 2012
* SF 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), undated
* Orders Number 017-068, issued by the Department of Military Affairs, State of Illinois, dated 26 January 1999
* NGB Form 22 (Report of Separation and Record of Service) for the period ending 29 January 1999
* Army Reserve Personnel Command (ARPC) Form 249-2-E (Chronological Statement of Retirement Points), dated 4 March 2004
* A letter to her from the U.S. Army Human Resources Command (HRC), dated 24 April 2012
* DD Form 214 (Report of Separation from Active Duty), for the period ending 28 February 1977
* Various military orders, certificates, and medical documentation

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 4 April 1953.  He and the applicant were married on
23 August 1975.

2.  Having had prior service in the Regular Army and U.S. Army Reserve, the FSM enlisted in the ILARNG on 25 July 1994.  He completed over 25 years of service and he attained the rank/grade of master sergeant (MSG)/E-8.

3.  On 16 October 1995, the ILARNG issued the FSM a 20-year letter.  This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.  However, this notification letter did not give him the option to enroll in the Reserve Component SBP (RCSBP).

4.  He completed a DD Form 1883 wherein he stated he was married to the applicant and he elected to participate in the RCSBP for spouse and children based on the full amount under Option C (immediate coverage) in item 9c.  He 

indicated he had three children who were born on 6 January 1977, 2 April 1979, and 20 August 1987.  Additionally, the form shows the:

	a.  FSM placed his signature in Section VI (Signatures) in the signature of retiree block;

	b.  The witness placed her signature in the signature of witness block;

	c.  The date next to the witness signature shows the entry 29 March 1996; and

	d.  The FSM placed his signature on the reverse side of the form in item 9c (This item applies only to Reserve and National Guard members who have been notified that they have completed the required years of recognized Federal service to be eligible for retired pay upon application at age 60) and entered the date 4 November 1995.

5.  He was honorably discharged on 29 January 1999 and he was transferred to the Retired Reserve.  His NGB Form 22 shows he completed 25 years,
2 months, and 29 days of service for pay.

6.  On 3 January 2012, the FSM died.  He was 58 years of age.  His Certificate of Death listed the name of the applicant as the informant and wife.

7.  On 8 May 2012, by letter, an HRC official notified the applicant that she was not entitled to SBP annuity payment because the FSM did not complete the RCSBP election within 90 days of receiving his 20-year letter.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving family members.

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 (and eligible to participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

* 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 receive an annuity immediately upon their death if before age 60

DISCUSSION AND CONCLUSIONS:

1.  The FSM was issued a 20-year letter on 16 October 1995.  It is unclear on what date he received this letter.  The letter did not give him instructions or timelines regarding enrollment in the RCSBP.  It appears he exercised his own due diligence to complete and submit a DD Form 1883 on either 4 November 1995 or 29 March 1996.  Had he been aware of the 90-day rule, it is reasonable to presume he would have completed this form within the 90-day window.

2.  Additionally, had he been informed that his election was late, he could have either sought correction of his records at that point or sought enrollment during a subsequent Open Enrollment Season.

3.  Therefore, as a matter of equity, the FSM's records should be corrected to show he elected RCSBP option C, spouse coverage within 90 days of receiving his 20-year letter and that his election was received and processed by officials at the Defense Finance and Accounting Service (DFAS).  Additionally, his spouse, the applicant, should be entitled to an annuity based on his death, effective 
4 January 2012.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

* Showing the FSM elected RCSBP spouse coverage under Option C within 90 days of receiving his 20-year letter
* Showing his election was received and processed by DFAS in a timely manner
* Paying the applicant an RCSBP annuity retroactive to the day after the FSM's death



      ____________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)                                         AR20120013152



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ABCMR Record of Proceedings (cont)                                         AR20120013152



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