IN THE CASE OF:	

		BOARD DATE:	22 October 2013

		DOCKET NUMBER:  AR20130003292 


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 deceased service member (FSM), requests payment of the Survivor Benefit Plan (SBP) annuity based on his death. 

2.  The applicant states she was denied payment of the SBP annuity because the FSM did not sign his DD Form 1883 (SBP Election Certificate) within 90 days.  The 20-year letter he received did not state he had to sign the DD Form 1883 within 90 days. 

3.  The applicant provides:

* Denial letter from the U.S. Army Human Resources Command (HRC)
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* Marriage certificate
* DD Form 1883
* FSM's certificate of death

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on XX October 1958.  He and Tina, the applicant, were married on 14 February 1981. 

2.  The FSM's records show he enlisted in the Tennessee Army National Guard (TNARNG) on 28 August 1980.  He served through multiple extensions in the ARNG and he attained the rank/grade of staff sergeant (SSG)/E-6. 

3.  On 15 September 2000, the TNARNG issued the FSM his 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 contained three enclosures, one of which was an SBP Summary which would have stated: 

By law, you have only 90 calendar days from the date you receive this letter to submit your Survivor Benefit Plan Election Certificate (DD Form 1883).  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. 

5.  On 17 October 2001, the FSM completed a DD Form 1883 wherein he indicated he was married to the applicant and they had dependent children.  He elected "spouse" RCSBP coverage, Option C (immediate coverage), based on the full amount.  He and the applicant signed this form on 17 October 2001. 

6.  On 12 July 2010, the TNARNG published Orders 193-821 transferring him to the Retired Reserve effective 1 September 2010. 

7.  The FSM died on 22 October 2012.  He was 53 years of age at the time.  His death certificate listed him as married and the applicant as his spouse. 

8.  On 23 January 2013, 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 an SBP Election Certificate (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. 

9.  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.  The election had to be made within 90 days of receiving one’s 20-year letter.  Three options were available: 

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP 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

10.  Public Law 108-375, enacted on 28 October 2004, established an open enrollment season from 1 October 2005-30 September 2006 that was extensively publicized in Army Echoes to ensure all retirees were informed of its existence.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Soldiers who complete 20 years or more 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 that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.  The FSM, by not responding to his 20-year letter notification, effectively deferred his SBP election to age 60.

2.  Although the FSM completed a DD Form 1883 on 17 October 2001, this form is not valid since it was not completed within 90 days of his 20-year letter.  Furthermore, although the complete SBP Summary accompanying the 2-year letter is not available, the FSM knew or should have known of the requirement to complete his election within 90 days. 

3.  However, the DD Form 1883 was accepted by his unit and is filed in his official personnel records.  Had he known the election was not valid, it is reasonable to presume he would have attempted to enroll during the 1 October 2005-30 September 2006 Open Season.  

4.  Based on acceptance and filing of this form, it appears the Army may have led the FSM to believe he was covered by the RCSBP and prevented him from making a later, valid election.  Therefore, as a matter of equity, the FSM's records should be corrected to show he elected to participate in the RCSBP within 90 days of receiving his 20-year letter and the applicant should be entitled to his annuity. 





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 properly elected to participate in the RCSBP, spouse coverage, Option C, full amount, within 90 days of receiving his 20-year letter
* showing his request was timely received and processed by the appropriate Defense Finance and Accounting Service office
* paying the applicant the SBP annuity retroactive to 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)                                         AR20130003292



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ABCMR Record of Proceedings (cont)                                         AR20130003292



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