BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130005347 


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 requests, in effect, that the records of her late husband, a former service member (FSM), be corrected to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for her at the time of his retirement. 

2.  The applicant states:

   a.  Her husband’s service records were updated posthumously to reflect 20 years of service.  Since his records were updated posthumously a 20-Year letter was never generated while he was living; therefore, no RCSBP election could be made.  As the injured spouse, she wants to qualify for RCSBP benefits based on her husband’s years of service.

   b.  Her husband died on 31 October 2011.  He served in the U.S. Army, Utah Army National Guard (UTARNG), and the U.S. Army Reserve (USAR) from 1974 until his death.  Prior to his death, his retirement points had not been updated by either himself or his unit administrator to reflect more than 20 qualifying years of service.  As a result, he was not issued the 20-year letter and no RCSBP election was made causing her to be denied retirement benefits from her late husband to which she would have been entitled had the matter been handled properly.

   c.  She contacted the Army Reserve Survivor Outreach Services financial counselor who then spoke with Staff Sergeant (SSG) Sxxxxx Mxxxxxx of the UTARNG.  SSG Mxxxxxxx was able to locate her husband’s retirement points from 21 November 1974 to 24 April 1992 and contacted the USAR unit her husband served with until his death.  His records have not been updated and his unit certified that he had 25 years of good service.  Had the records been properly combined or reported, he would have been issued a 20-year letter more than 5 years ago and could have made the RCSBP election.

   d.  Her husband spent over 24 years in the military and because of neglect of the unit administrator and her husband, she is not able to receive a portion of his retirement benefits that she would have been eligible for had it been handled properly.  Regardless of who was at fault, it is not the fault of the surviving spouse and she respectfully requests the full benefits to which she is entitled.

3.  The applicant provides copies of a letter from the Army Review Boards Agency, her marriage license, and FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on xx March 1957.  He enlisted in the Regular Army on 21 November 1974 and he was discharged on 24 December 1980.  He enlisted in the ARNG on 27 March 1982 and he was discharged on 24 April 1992.  He again enlisted in the ARNG on 26 April 1985 and he was discharged on 17 April 1989.  He enlisted in the USAR on 20 May 1999. 

2.  The applicant provided a copy of a marriage license which shows she and the FSM were married on 17 March 2001.

3.  The FSM died on 31 October 2011.

4.  A Chronological Statement of Retirement Points, dated 15 April 2013, shows the FSM was credited with completing 24 years, 9 months, and 7 days of qualifying service for retired pay as of 1 November 2011.

5.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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; or (c) elect that a beneficiary receive an annuity immediately upon their 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 waited election until he applied for retired pay and elected to participate in the standard SBP.

6.  Public Law 106-398, enacted 30 October 2000, required Reserve and Guard members, who had completed their service obligation, considered entitled to retired pay, but who were not yet age 60, to obtain their spouse's concurrence in RCSBP elections that did not provide maximum spouse coverage (immediate option).  The law applied to members receiving notification of service completion after 1 January 2001.  

7.  Title 10, U. S. Code, section 1448(f)(1)(A) states the Secretary concerned shall pay an annuity to the surviving spouse of a person who is eligible to provide a Reserve Component (RC) annuity and who dies before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for RC retired pay. 

DISCUSSION AND CONCLUSIONS:

1.  It appears the FSM's retirement points were updated and corrected sometime after he died.  He died on 31 October 2011 prior to making an RCSBP election and obtaining his spouse's concurrence or non-concurrence.  

2.  Having been denied the opportunity to apply for an election and his spouse having been denied the opportunity to concur or non-concur in any election of less than full immediate spouse coverage the applicant is entitled to relief as a matter of law.  In view of the foregoing, the records should be corrected as recommended below.

BOARD VOTE:

__X__  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 would have been eligible to be issued a 20-Year Letter prior to his death
* showing the applicant was eligible for, as a matter of law, and applied for the RCSBP annuity as the spouse/beneficiary on 1 November 2011, the day following her husband's death
* paying her the annuity due as a result of this correction, retroactive to 1 November 2011




      _______ _   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)                                         AR20130005347





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ABCMR Record of Proceedings (cont)                                         AR20130005347



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