IN THE CASE OF:	  

		BOARD DATE:	    7 November 2013

		DOCKET NUMBER:  AR20130004957 


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 her husband's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) with spouse coverage.

2.  The applicant states it is her belief that her husband never considered the consequences or gave consideration to the RCSBP thinking that it would be effective upon him reaching age 60.  Due to her lack of knowledge about military benefits, she was not aware that the RCSBP existed.  She adds her husband was very dedicated to his family and country.

   a.  After he retired, he was diagnosed with esophageal cancer and he died on 29 July 2012, at age 56, leaving behind her and their children.  

   b.  She applied for the survivor annuity and was told that a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) was not on file in the FSM's military records.

   c.  The applicant went through all of her files and asked the local Retirement Services Officer to review his files for the FSM's DD Form 1883; however, it could not be located.  On 24 October 2012, the U.S. Army Human Resources Command (HRC) denied her SBP claim.

3.  The applicant provides copies of their marriage certificate, the FSM's death certificate, her application for SBP benefits, and HRC's denial.

CONSIDERATION OF EVIDENCE:

1.  The FSM had honorable enlisted service in the Regular Army from 20 June 1974 through 13 September 1976 and transferred to the U.S. Army Reserve to complete his Reserve obligation.  Records show he was born on 28 June 1956.

2.  He continued to serve in the U.S. Army Reserve and he was promoted to the rank/ grade of staff sergeant (SSG)/E-6.

3.  On 22 September 1995, the Chief, Retired Activities Division, U.S. Army Reserve Personnel Command, St. Louis, MO, notified the FSM that his eligibility for retired pay had been established upon attaining age 60.  He was also notified of his entitlement to participate in the RCSBP established by Public Law 95-397.  The memorandum states "[t]his plan enables you to provide an annuity for your spouse, and other eligible beneficiaries.  By law, you have only 90 calendar days from the date you receive this memo to submit your SBP - Election Certificate (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.  If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits.  More detailed information concerning participation in the RCSBP and a blank DD Form 1883 are enclosed."

4.  Orders 129-13, issued by Headquarters, 81st Regional Support Command, Birmingham, AL, dated 8 May 1996, assigned the FSM to the Retired Reserve effective 25 April 1996.

5.  A review of the FSM's records failed to reveal a copy of a DD Form 1883.

6.  In support of her application, the applicant provides the following pertinent documents.

	a.  A State of Alabama, Marriage License, that shows the applicant and FSM were married on 25 April 1980.

   b.  A State of Alabama, Center for Health Statistics, Alabama Certificate of Death, filed on 6 August 2012, that shows the FSM died on 29 July 2012.  It also shows the FSM was married at the time of his death and the applicant's name is listed as the surviving spouse on the certificate.

   c.  A DD Form 2656-7 (Verification for Survivor Annuity) with enclosures, dated 10 October 2012, submitted by the applicant requesting verification of eligibility for survivor annuity based on the FSM's military service.
   d.  An HRC memorandum, dated 24 October 2012, that shows the Chief, Retired Pay Branch, notified the applicant that records show the FSM failed to make an election within the required 90 calendar day time frame.  Therefore, she is not entitled to any benefits.

7.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B)  elect that a beneficiary receive an annuity if the service member dies before age 60, but delay payment of it until the date of the member's 60th birthday; and (C)  elect that a beneficiary receive an annuity immediately upon the service member's 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 wait until he/she applies for retired pay and elect to participate in the standard SBP.  Failure to elect an option resulted in the default election of Option A.

8.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes, a Retired Army personnel bulletin mailed to retired Soldiers, gray-area retirees (such as the FSM),  and SBP annuitants three times a year since January 1979.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her deceased husband should be corrected to show he enrolled in the RCSBP with spouse coverage.

2.  The evidence of record shows the FSM was provided his Twenty-Year Letter with the accompanying SBP forms in September 1995.

	a.  There is no evidence the FSM made an RCSBP election within 90 days of receipt of this notification.  As such, the FSM's failure to make an election resulted in the default election of Option A (i.e., elect to decline enrollment and choose at age 60 whether to start standard SBP participation).


   b.  The FSM was assigned to the Retired Reserve on 25 April 1996.

   c.  There is no evidence the FSM enrolled in the SBP during the 2005-2006 Open Season enrollment period.

3.  Unfortunately, the FSM died before reaching age 60, when he would have been eligible to elect standard SBP.

4.  Regrettably, in view of all 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)                                         AR20130004957



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004957



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1