IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130000228 


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 spouse of a former service member (FSM), requests, in effect, correction of the FSM's records to show she is entitled to Survivor Benefit Plan (SBP) benefits.

2.  The applicant states that after looking through the FSM's records she found his 20-year letter, a retirement handbook, and an SBP Fact Sheet.  Of interest is the fact that the blank DD Form 1883 (SBP Election Certificate) was missing.  The applicant contends that if the FSM had not completed the form it would have been with the other forms.  Further, upon turning in the form to his unit, the form would have gone through channels and the FSM would never have received any notification that the form had been filed properly.  This lack of checks and balances by the Army has left many Soldiers and their families without proper settlement of their retirements.

3.  The applicant provides:

* Certificate of Marriage
* two Certificates of Live Birth
* Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter), dated 22 October 1998
* Orders 03-198-00101, dated 17 July 2003
* Certificate of Death, certified 10 July 2008
* DD Form 1300 (Report of Casualty), dated 31 October 2008
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 29 October 2009
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 entered military service as a Regular Army (RA) enlisted Soldier on 1 July 1975.  On 30 June 1978, he was released from active duty and transferred to the U.S. Army Reserve (USAR).

3.  The marriage certificate provided by the applicant shows the applicant and the FSM were married on 30 July 1992.

4.  The FSM was issued a "Notification of Eligibility for Retired Pay at Age 60 with (Twenty-Year Letter)" on 22 October 1998, from the USAR Personnel Command, which notified the FSM that he had the opportunity to make an election to cover his dependents under the Reserve Component Survivor Benefit Plan (RCSBP).  Further, he had 90 days from the date of his Notification of Eligibility for Retired Pay to make such an election; otherwise, he could not do so until he applied for his retired pay at age 60.  This election document would have been provided as an enclosure to the FSM's 20-year letter.

5.  Orders Number 03-198-00101, issued by Headquarters, 99th Regional Support Command, Coraopolis, PA, dated 17 July 2003, show he was honorably separated from the USAR, on 30 June 2003, and transferred to the Retired Reserve.

6.  His ARPC Form 249-E, dated 29 October 2009, shows he held the rank of staff sergeant (SSG)/E-6 and he completed 23 years, 11 months, and 28 days of service for retired pay purposes.

7.  The FSM’s Army Military Human Resource Record (AMHRR) does not contain an RCSBP/SBP Election Certificate nor do his Defense Finance and Accounting Service (DFAS) records contain evidence of an RCSBP/SBP election.
8.  On 29 June 2008, at age 56, the FSM died.  The death certificate shows he was married to the applicant at the time.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members 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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before 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 have waited until he/she applied for retired pay and elected to participate in the standard SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for RCSBP benefits was carefully considered; however, there is insufficient evidence to grant relief.

2.  The evidence shows the FSM and the applicant were married on 30 July 1992 and the FSM was transferred to the Retired Reserve List on 30 June 2003. Although it appears the FSM was notified of the requirement to make an RCSBP election, there is no evidence that he made such an election.  His notification further informed him that if he failed to make an election within 90 days, he would not have the opportunity to make the election until he was eligible to receive retired pay at age 60.  He died on 29 June 2008 at age 56 before becoming eligible to enroll in the program.  Although the Board accepts the applicant's statement that no blank DD Form 1883 was found among his papers, that fact is insufficient to show that he made an election and that the Government subsequently mishandled the form.

3.  In view of the foregoing, there is no basis upon which to grant 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)                                         AR20130000228





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ABCMR Record of Proceedings (cont)                                         AR20130000228



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