IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20130001440 


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:

The applicant defers her request and statement to counsel.

COUNSE'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant, the spouse of a deceased former service member (FSM), be paid the Survivor Benefit Plan (SBP) annuity based on the FSM's death.

2.  Counsel states due to the FSM's cancer and frequent hospitalization and chemo/radiation therapy, at the time the Army sent him the documents for his retired pay he did not complete the required forms authorizing his SBP benefits to his spouse.  However, he completed a DD Form 2656 (Data for Payment of Retired Personnel) that clearly shows he elected spouse coverage.  He signed and dated this form on 10 February 2010, the same day he was admitted to the hospital.  He died 16 days later on 26 February 2010.  His illness prevented him from physically and mentally completing this form.  Given the circumstances of his death and the applicant's grieving, she could not file the forms through no fault of her own or that of the FSM.

3.  The applicant provides:

* Support letter from Lieutenant Colonel (LTC) (Retired) R------ J. G-----
* DD Form 2656
* 
DD Form 2656-7 (Verification for Survivor Annuity), dated 19 October 2011
* Certificate of Death
* Certificate of Marriage Registration
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 13 October 2011
* Standard Form (SF) 1199A (Direct Deposit Sign-Up Form), dated
19 October 2011
* Form W-4P (Withholding Certificate for Pension or Annuity Payment) dated 19 October 2011
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 May 1970
* Memorandum to the FSM from the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 17 June 1991
* a letter to her from the Army Transition Office, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 6 December 2011

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 27 June 1951.  He and the applicant were married on
5 August 1978.

2.  Having had prior service, the FSM enlisted in the U.S. Army Reserve (USAR) on 25 November 1975.  He served through multiple reenlistments in the USAR and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  On 17 June 1991, the ARPERCEN 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 at age 60, upon application.  This letter further informed him:

By law, you have only 90 calendar days from the date you receive this letter to submit your DD Form 1883 (SBP Election Certificate).  If you do not submit your election within 90 calendar days, you will not be allowed to obtain survivor benefit coverage until you apply for retired pay at
age 60.  If you do not elect coverage, should you die before age 60, there will be no benefits for your survivors.  More detailed information concerning participation in the Reserve Component Survivor Benefit Plan (RCSBP) and blank DD Form 1883 are enclosed.

4.  There is no indication the FSM made an election within 90 days.  Furthermore, an official at the Defense Finance and Accounting Service (DFAS) confirmed by email, dated 12 February 2013, that no DD Form 1883 is on file at DFAS. 

5.  Orders 38-16, issued by Headquarters, 77th U.S. Army Reserve Command, Fort Totten, NY, dated 12 March 1993, transferred the FSM to the USAR Control Group (Reinforcement) due to non-selection for retention.

6.  Orders D-07-558442, issued by the ARPERCEN dated 13 July 1995, honorably discharged the FSM from the USAR effective the same date.

7.  The FSM died on 10 February 2010.  He was 58 years of age at the time.  His Certificate of Death listed him as married and the applicant as his spouse.

8.  It appears the applicant communicated with HRC regarding her entitlement to the SBP.  She submitted an SF 1199A, Form W-4P, the FSM's Certificate of Death, and the following additional documents:

	a.  DD Form 2656, dated 10 February 2010.  The FSM indicated he was married to the applicant and they had no dependent children.  He elected spouse SBP based on the full amount and signed this form.  Additionally, the form was also signed by a witness on 10 February 2010.

	b.  DD Form 2656-7, dated 19 October 2011, wherein the applicant requested payment of the SBP annuity as the surviving spouse.

9.  On 6 December 2011, by letter, HRC responded to the applicant and stated by law, the FSM had 90 days from the date he received his 20-year letter to submit a DD Form 1883.  If an election was not made within 90 days, he would not be entitled to SBP coverage until he applied for retired pay at age 60.  Since the FSM never made an election and never applied for retired pay, she would not be entitled to the SBP.

10.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service), paragraph 2-1a indicates that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a RC Soldier.

11.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component (RC) members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* Option A - elect to decline enrollment and choose at age 60 whether to start RCSBP 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.  By law and regulation, RC Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within
90 calendar days of receipt.  The FSM's records do not indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.

2.  By not responding to his 20-year letter notification, the FSM effectively deferred his SBP election to age 60.  As this was a deferral as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.  Additionally, since the FSM chose to defer his election to age 60, but died before reaching age 60, there was no coverage at the time of his death.

3.  Although the DD Form 2656, dated 10 February 2010, and submitted by the applicant never entered military channels, even if it had, SBP coverage would not have been effective until June 2011.  Furthermore, in 1991 long before his illness, the FSM was advised of the consequences of not making an election within 90 days of receiving his 20-year letter.

4.  The law is clear.  The member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies to participate in the standard SBP.  Regrettably, the FSM did not make an RCSBP election and he died prior to reaching age 60.  Therefore, any attempted SBP election made in conjunction with his application for non-regular retired pay was without effect.  The applicant does not qualify for the SBP annuity.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130001440



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ABCMR Record of Proceedings (cont)                                         AR20130001440



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