IN THE CASE OF:
BOARD DATE: 23 January 2014
DOCKET NUMBER: AR20130004008
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 former spouse of a deceased former service member (FSM), requests correction of his records to show a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) was filed in a timely manner.
2. The applicant states:
* the FSM enrolled in the RCSBP with option C upon receipt of his 20-year letter
* his 20-year retirement date was 10 February 1995, but he continued to drill until 11 September 1995
* it is possible he received his 20-year letter between 90-120 days after February 1995
* his 20-year letter is dated 23 May 1995
* maybe the 20-year letter was received in June 1995 which would explain the submission of his RCSBP election on 17 September 1995
3. The applicant provides:
* DD Form 1883
* Chronological Statement of Retirement Points
* 20-year letter
* FSM's death certificate
* Divorce decree
* Marriage license
* U.S. Army Human Resources Command (HCR) letter, dated 19 December 2012
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 25 August 1955. He enlisted in the U.S. Army Reserve on 11 February 1975. He and the applicant married on 8 July 1989.
2. On 23 May 1995, he was issued his notification of eligibility for retired pay at age 60. Paragraph 4 of this memorandum pertains to the RCSBP and the DD Form 1883 and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. This form also states "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."
3. The applicant provides a DD Form 1883, dated 17 September 1995, which shows the FSM enrolled in the SBP and elected spouse and children coverage, full amount, and Option C (Immediate Coverage). This form has a Certified True Copy stamp and date stamp of 27 September 1995 on it.
4. He was transferred to the Retired Reserve on 12 September 1995 in the rank of sergeant.
5. He and the applicant divorced on 1 August 2005. The property settlement agreement does not award the applicant the SBP. The couple had two minor sons at the time. The older son is now age 18 and the younger is 16.
6. On 22 August 2013, the FSM died at the age of 56. His death certificate shows he was divorced.
7. On 19 December 2012, HRC denied the applicants request for survivor benefits annuity which was submitted by her on behalf of the sons mentioned above. The denial letter states:
* by law, the FSM had 90 calendar days from the date he received his
20-year letter to submit a DD Form 1883
* according to HRC records, the FSM never made an election
* the applicant is not entitled to any benefits
8. 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.
9. 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 were 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.
10. Before the law was amended in October 2000, 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 wait until he/she applied for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of option A, decline enrollment and choose at age 60 whether to start SBP participation.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered. Although it appears the FSM failed to make an RCSBP election within the required 90 calendar day time frame the applicants argument that his 20-year letter was not received until several weeks later is believable. Further, based on the Certified True Copy stamp and date stamp on the DD Form 1883 it appears HRC accepted the FSMs election, never informed him of any problems, and thereby effectively denied him the opportunity to make other arrangements to financially provide for his family.
2. While the property settlement agreement did not award the applicant the SBP (and accordingly the applicant would not be entitled to the annuity in her own right) it would be equitable to correct the FSMs records to show he made a timely election of spouse and children coverage in 1995. Such a correction would make his children eligible for the 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 FSMs DD Form 1883 for spouse and children coverage was timely received and processed by the appropriate offices and by paying the SBP annuity to his children retroactive to the day after his death, provided they are otherwise eligible.
_______ _ 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) AR20130004008
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ABCMR Record of Proceedings (cont) AR20130004008
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