IN THE CASE OF:
BOARD DATE: 17 December 2013
DOCKET NUMBER: AR20130004299
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, as the widow of a deceased former service member (FSM) requests correction of the FSM's military records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP).
2. The applicant states the FSM received the Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) in the mail sometime in December 1998. They completed the form and returned it in January to the unit. The FSM made an election within 90 days from the date of the 20-Year Letter was received in the mail and he should not have been penalized for not receiving the document in September.
3. The applicant provides the FSM's DD Form 1883 (SBP Election Certificate), a letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command, Fort Knox, KY (HRC-Fort Knox), the FSM's Army National Guard (ARNG) Retirement Points History Statement, a License and Certificate for Marriage, a Certificate of Death, and the FSM's 20-Year Letter.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 8 December 1952. After completing prior service in the Regular Army, the FSM enlisted in the ARNG on 3 February 1979. He and the applicant were married on 11 June 1987.
2. His notification of eligibility for retired pay at age 60 (20-Year Letter) indicates it was prepared on 17 September 1998.
3. On 21 January 1999, the FSM completed a DD Form 1883 electing to participate in the RCSBP for spouse and children coverage, full base amount, option C. This form indicates one dependent child (son) born on 14 August 1988.
4. He was honorably discharged from the ARNG on 2 February 1999 in the rank of specialist. On the following date, he was transferred to the U.S. Army Reserve Control Group (Retired). The FSM's RCSBP election form (DD Form 1883) was received and date stamped "22 March 1999."
5. Orders published on 1 May 2012 by HRC-Fort Knox show he was to be retired and placed on the retired list on 8 December 2012. The FSM died on 12 May 2012. His death certificate indicates he was married and lists the applicant as his spouse.
6. In a 6 February 2013 letter, the Chief, Retired Pay Branch, HRC-Fort Knox informed the applicant that the FSM had 90 calendar days from the date he received his 20-Year Letter to submit a 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. The official stated, according to their records, the FSM failed to make an election within the required 90 calendar day time frame. Therefore, she was not entitled to any benefits. The applicant was advised to apply to the Army Board for Correction of Military Records.
7. 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.
8. 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.
DISCUSSION AND CONCLUSIONS:
1. The FSM's 20-Year Letter is dated 17 September 1998. Evidence shows he completed a DD Form 1883 and signed the form on 21 January 1999. At that time, he elected RCSBP for spouse and children coverage.
2. The FSM had 90 calendar days from the date he received his 20-Year Letter to submit his DD Form 1883 to submit an election to participate in the RCSBP. His service record is void of evidence to confirm the date he actually received his 20-Year Letter. However, the applicant states the FSM received his 20-Year letter sometime in December 1998, completed the form, made an election within 90 days, and returned it in January to the unit. Therefore, the FSM had until March 1999 to submit his RCSBP election form. The applicant's statements are accepted as sufficient evidence to support relief in this case.
3. As a matter of equity, it would be appropriate to amend the FSM's records to show he requested to participate in RCSBP for spouse and children coverage within a timely manner.
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 correcting the FSM's records to show he elected to participate in RCSBP for spouse and children coverage within a timely manner and to pay the applicant the RCSBP annuity.
_______ _ _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) AR20130004299
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