`
		IN THE CASE OF:	  

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20130001432 


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 correction of the FSM's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and that she is entitled to an annuity.

2.  She states the FSM did not receive the RCSBP election forms with his 
20-year letter.  He was given the forms at the Reserve Center in November 1997. The forms were returned to the Reserve Center in December 1997 within the time frame he was given.  She attests the FSM contacted the military in June/July 2010 when he knew his cancer was terminal to make sure that everything was in order.  He was assured that there were no issues and she should be receiving the FSM's Army pension. 

3.  She provides the following:

* Orders 134-13, dated 14 May 1999
* Self-authored statement
* Letter, U.S. Army Human Resources Command (HRC), dated 19 July 2012
* DD Form 2656-7 (Verification for Survivor Annuity), dated 7 December 2011
* DD Form 1883 (SBP Election Certificate), dated 20 December 1997
* Memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 22 January 1997
* Forms W-4P (Withholding Certificate for Pension or Annuity Payments), dated 7 December 2011
* Direct Deposit Sign-Up Form, dated 17 December 2011
* State of Ohio Certificate of Death
* Marriage License
* Chronological Statement of Retirement Points, dated 7 June 2012

CONSIDERATION OF EVIDENCE:

1.  On 3 September 1971, the FSM enlisted in the Regular Army.  He was honorably released from active duty on 30 August 1974.  He enlisted in the Army National Guard (ARNG) on 17 September 1974 and enlisted in the U.S. Army Reserve on 27 October 1986 upon his discharge from the ARNG.  His date of birth is shown as 20 October 1953.

2.  On 6 June 1986, the FSM and the applicant were married.

3.  On 22 January 1997, the FSM was issued his 20-year letter.  The letter stated that he was entitled to participate in the RCSBP which enabled him to provide an annuity for his spouse, and other eligible beneficiaries.  It further stated:

BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVED THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATION (DD FORM 1883).  IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO BENEFITS.
   
4.  Details on the RCSBP and a blank DD Form 1883 (SBP Election Certificate) were listed as enclosures to the FSM's 20-year letter.

5.  The FSM's record is void of any evidence or forms showing he elected coverage under the RCSBP.  However, a DD Form 1883, provided by the applicant, indicated that on 20 December 1997 the FSM applied for RCSBP and elected immediate coverage for spouse and children at a full base amount.  The form is listed as a "Certified True Copy" and contains the date stamp of 5 January 1998.

6.  On 1 June 1999, the FSM was transferred to the Retired Reserve.

7.  The FSM died on 12 October 2011.  The death certificate lists his marital status as married and the applicant as his spouse.

8.  On 19 July 2012, the Chief, Retired Pay Branch, HRC, stated that by law, the FSM had 90 calendar days from the date he received his 20-year letter to submit DD Form 1883.  If an election was not made within the required 90 days, he would not be entitled to SBP coverage until he applied for retired pay at age 60.  According to their records, the FSM failed to make an election within the required 90 calendar day time frame.

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; (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 contends the FSM did not receive the RCSBP election forms with his 20-year letter.  However, the evidence shows the FSM's 20-year letter stated a blank DD Form 1883 was enclosed.  

2.  Based on the DD Form 1883 containing a date stamp of 5 January 1998, it appears the FSM's form may have been submitted late but accepted by an official Army agency.  However, the Government erred in failing to inform the FSM that this form was late and instead induced reliance and accepted the forms as evidenced by the stamp.  This caused the FSM to reasonably believe he was covered, when in fact he was not.  Had he known the true state of his affairs, he could have enrolled during the 2005-2006 Open Season.

3.  Based on the foregoing, it would be equitable and just to correct the FSM's records to show the FSM submitted and was approved for RCSBP for spouse and children at a full base amount in a timely fashion.



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 made a timely election for RCSBP, immediate coverage for spouse and children on 22 January 1997;
   
   b.  showing the request was timely received and processed by the appropriate office; and

   c.  paying the applicant the RCSBP annuity retroactive to the day after the FSM's death, minus applicable premiums due.



      _______ _  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)                                         AR20130001432



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001432



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1