IN THE CASE OF:	  

		BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20120019617 


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 a Survivor Benefit Plan (SBP) annuity.

2.  The applicant states that in 1997 she and her husband submitted a
DD Form 1883 (SBP Election Certificate), as instructed, to show intent for her to receive benefits.  She goes on to state he again submitted a DD Form 2656 (Data for Payment of Retired Personnel) in 2010 to again show intent for her to receive benefits.  However, when he passed away and she applied for benefits she was told his election was not submitted in a timely manner and he died before reaching age 60.  As a result, she was not entitled to any benefits.

3.  The applicant provides:

* a memorandum to the FSM, issued by Headquarters, Louisiana Army National Guard (LAARNG), subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 30 June 1997
* DD Form 1883
* DD Form 2656
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Marriage
* Certificate of Death
* a letter to her from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), dated 22 August 2012


CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 10 February 1952.  After serving in the U.S. Marine Corps from July 1972 until July 1976, the FSM enlisted in the LAARNG on
14 May 1980.  He was promoted to the pay grade of E-6 on 20 July 1983.

2.  He continued to serve in the LAARNG through a series of continuous reenlistments and on 30 June 1997, he was issued a 20-Year letter.  The letter contained no information regarding his responsibility to make an election under the Reserve Component SBP.

3.  On 20 November 1997, the FSM and applicant completed a DD Form 1883 electing full spouse and children coverage under option C (immediate coverage).

4.  On 15 September 2008, he was honorably discharged from the LAARNG and was transferred to the Retired Reserve.  He completed 32 years and 4 months of service for retired pay purposes and 34 years, 4 months, and 2 days of service for pay.

5.  On 27 May 2010, the FSM submitted a DD Form 2656 wherein he made an SBP election for full coverage of his spouse only.

6.  The FSM passed away on 8 December 2011, approximately 64 days before reaching age 60.

7.  On 22 August 2012, officials at HRC notified the applicant that because the FSM did not make his election within 90 days of receipt of his 20-year letter, his election of 20 November 1997 was not a valid election because his 20-year letter was dated 30 June 1997.  Officials at HRC advised the applicant to apply to this Board.

8.  In the processing of this case a staff member of the Board contacted officials at the Defense Finance and Accounting Service (DFAS) and were informed that the applicant is listed as the beneficiary for the FSM’s SBP benefits and that premiums were deducted in March 2012.  A copy of the FSM’s DD Form 1883, dated 20 November 1997, was also provided by the DFAS official.

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


10.  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 SBP 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.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.
 
DISCUSSION AND CONCLUSIONS:

1.  While the evidence of record shows a 20-year letter was issued on 30 June 1997, it does not establish when the FSM received it or when he was advised of the requirement to make an election within 90 days of receipt of the 20-year letter.

2.  The FSM and the applicant completed the DD Form 1883 making an immediate coverage election on 20 November 1997 and it appears that it was accepted by DFAS officials at the time.

3.  It is also noted that approximately 15 years passed from the time the election was made and the applicant was informed that the FSM’s election at the time was not valid.

4.  While it is recognized that the FSM’s DD Form 1883 was not completed within 90 days of the date the 20-year letter was issued, there appears to be no evidence to show when he received the 20-year letter or when he was notified of the 90-day requirement to submit an election.

5.  It is also apparent that the FSM intended that the applicant be provided an annuity should he die before reaching age 60 and given his many years of honorable service, it would be in the interest of justice that his election of 20 November 1997 be deemed to be a timely election and the applicant be granted the SBP annuity that the FSM earned.

6.  In view of the foregoing, the FSM's record should be corrected 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 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:

	a.  showing the FSM’s SBP election of 20 November 1997 was timely made, and received and processed by the appropriate office, and

	b.  paying the applicant the SBP annuity payments due beginning on the date following 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)                                         AR20120019617



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ABCMR Record of Proceedings (cont)                                         AR20120019617



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