BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120016995 


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 the record of her deceased husband, a former service member (FSM), be corrected to show he submitted his Reserve Component Survivor Benefit Plan (RCSBP) election in a timely manner.

2.  The applicant states the FSM did not submit his RCSBP election within 
90 days as was required at the time and while ignorance is no excuse, she is requesting an exception to policy to receive the much needed help.  

3.  The applicant provides the documents identified in the supporting documentation information part of her application in support of this request.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM’s record shows that after prior service in the Regular Army, the FSM entered the U.S. Army Reserve (USAR) on 18 April 1971 and continuously served through reenlistments until being transferred to the Retired Reserve on 
31 July 1995.  

3.  A “Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)” memorandum, dated 3 November 1995, informed the FSM he had completed the required years of service and would be eligible for retired pay upon application at age 60.  It also advised him he was entitled to participate in the RCSBP and that by law he had only 90 calendar days from the date he received the notification to submit a DD Form 1883; and that if he failed to submit the election form within 
90 days he would not be entitled to SBP coverage until he applied for retired pay at age 60.  

4.  The record contains a DD Form 1883 (SBP Election) dated 15 May 1996 in which the FSM elected full spouse only coverage under Option C (Immediate Coverage).  

5.  On 1 February 2010, the FSM died at the age of 59.  

6.  In a U.S. Army Human Resources Command memorandum, dated 16 August 2012, the applicant was informed that because the FSM had failed to submit his DD Form 1883 within 90 days of receipt of his Twenty Year Letter, she was not entitled to an SBP annuity based on his death.  She was advised to apply to this Board for an exception to policy.  

7.  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; or (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 (Twenty-Year Letter) or else wait until he/she applied for retired pay at age 60 and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

8.  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 Twenty-Year letter was issued after 1 January 2001.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request, in effect, that the record of her deceased husband be corrected to show he timely filed his DD Form 1883 has been carefully considered and found to have merit.  Although the FSM failed to submit his 
DD Form 1883 within 90 days, there are equity considerations in this case that support relief.

2.  The statutory requirement is to make the election within 90 days of receiving the Twenty-Year Letter.  The evidence of record confirms that the FSM did complete a DD Form 1883 on 15 May 1996.  Although it was outside of the 90 days from the date of the Twenty-Year Letter, it was within 6 months which is not excessive.  Given the FSM was already transferred to the Retired Reserve, it is reasonable to conclude there may have been administrative issues related to delivery of the Twenty-Year Letter to the FSM and that it was not received until 
1 May 1996.   

3.  In view of the facts of this case, the FSM's record should be corrected to show his DD Form 1883 was submitted within 90 days of receipt of his Twenty-Year Letter, and to show he elected immediate full spouse coverage (Option C).  Further, based on this valid election form, the applicant should be provided the SBP annuity due her based on the death of the FSM on 1 February 2010.

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 submitted his RCSBP Election Form within 90 days of receipt of his Twenty-Year Letter; by showing the FSM elected immediate full spouse coverage under Option C; and by providing the applicant any SBP annuity payments due from 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)                                         AR20120016995



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ABCMR Record of Proceedings (cont)                                         AR20120016995



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