IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130005953 


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 former service member (FSM), requests payment of the Survivor Benefit Plan (SBP) annuity based on the FSM's death.

2.  The applicant states her husband was a perfectionist about his military duties. Just because his DD Form 1883 (SBP Election Certificate) cannot be found does not prove he did not return it.  He promised and reassured her that the Army would take care of her for the rest of her life.  She was married to and supported him during 34 years of military service.  She should be entitled to this benefit.  It isn't right that she receives absolutely nothing from the military for all he did. 

3.  The applicant provides:

* DD Form 2656-7 (Verification for Survivor Annuity)
* Certificate of marriage
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Death
* Email exchange
* Letters from the U.S. Army Human Resources Command (HRC) to her Member of Congress
* Certificate of achievement
* DA Form 638 (Recommendation for Award)
* Standard Form (SF) 1199A (Direct Deposit Sign-Up Form)
* Form W-4P (Withholding Certificate for Pension or Annuity Payment) 
CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 13 August 1952.  He and the applicant were married on 3 June 1978. 

2.  The FSM enlisted in the U.S. Army Reserve (USAR) on 26 February 1975.  He served through multiple reenlistments in the USAR and he attained the rank/grade of command sergeant major (CSM)/E-9. 

3.  On 17 June 1996, the USAR Personnel Center, St. Louis, MO, issued the FSM a 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 further informed him:

By law, you have only 90 calendar days from the date you receive this letter 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 benefits 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 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.  Furthermore, an official at the Defense Finance and Accounting Service (DFAS) confirmed that no DD Form 1883 is on file at DFAS. 

5.  The FSM died on 6 February 2009.  He was 56 years of age at the time.  His Certificate of Death listed him as married and the applicant as his spouse.

6.  It appears the applicant communicated with HRC through her Member of Congress regarding her entitlement to the SBP.  She submitted an SF 1199A, Form W-4P, the FSM's Certificate of Death, and a DD Form 2656-7.  In response, HRC sent two letters: 

	a.  On 5 November 2010, by letter to her Member of Congress, an HRC official stated that the FSM was offered enrollment in the RCSBP but declined the opportunity.  He did enroll and keep his current life insurance policy with the Serviceman's Group Life Insurance (SGLI), which paid his designated beneficiary $400,000 upon his death.  Although the law changed with respect to the SBP, Congress did not provide a grandfather clause.  Since there is no documentation the FSM enrolled in the RCSBP, the applicant's request for the RCSBP annuity must be denied. 
	b.  On 5 October 2012, by another letter to her Member of Congress, an HRC official stated the RCSBP was established by law to provide an annuity for the spouse and other eligible beneficiaries for Reserve Soldiers or former Soldiers who have completed 20 qualifying years of service for retired pay at age 60.  By law, Reserve Soldiers have 90 calendar days from the date they receive a 20-year letter to submit the DD Form 1883.  If an election is not made within the required 90 calendar days, the Soldier would not be entitled to SBP coverage until he/she applied for retired pay at age 60.  As previously advised, there is no documentation that reflects the FSM executed a DD Form 1883 designating the applicant for RCSBP annuity.  Therefore, her request for the annuity is denied. 

7.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service), paragraph 2-1a indicates that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.

8.  Public Law 95-397, enacted 30 September 1978, provided a way for 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.  Three options were available:

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

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, RC Soldiers who complete 20 or more years 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 he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.

2.  By not responding to his 20-year letter notification, the FSM effectively deferred his SBP election to age 60.  As this was a deferral as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.  Additionally, since it appears the FSM chose to defer his election to age 60, but died before reaching age 60, there was no coverage at the time of his death.

3.  The FSM's honorable service and the applicant's sincerity with regard to supporting him throughout his career are not in question.  However, the decision to participate or not to participate in the RCSBP/SBP is a personal decision made by the Soldier and/or his family.  Furthermore, in 1996 long before his death, the FSM was advised of the consequences of not making an election within 90 days of receiving his 20-year letter.

4.  The law is clear.  The 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 to participate in the standard SBP.  Regrettably, the FSM did not make an RCSBP election and he died prior to reaching age 60.  Therefore, the applicant does not qualify for the SBP annuity.  In view 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)                                         AR20130005953



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ABCMR Record of Proceedings (cont)                                         AR20130005953



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