BOARD DATE:	19 December 2013

		DOCKET NUMBER:  AR20130007305


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, correction of her deceased husband's records to show she is entitled to Survivor Benefit Plan (SBP) benefits based on his death.

2.  The applicant states:

* her letter from the Department of the Army, dated 22 August 2012, states her claim for SBP benefits was denied because her late husband, a former service member (FSM), did not make an SBP election
* her late husband did make an election, which she provides as evidence
* her late husband mistakenly mailed the SBP election form to St. Louis, MO, on or about 30 September 2011, instead of the address listed on the form because he misunderstood where to mail the form

3.  The applicant provides:

* letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 22 August 2012
* DD Form 2656-7 (Verification for Survivor Annuity)
* Department of the Treasury, Internal Revenue Service (IRS) Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Standard Form (SF) 1199A (Direct Deposit Sign-Up Form)
* State of Oklahoma Certificate of Death
* DD Form 2656-6 (SBP Election Change Certificate)
* State of Oklahoma Marriage License
* her divorce decree from the District Court of Pittsburg County, State of Oklahoma, dated 20 December 2004
* the FSM's divorce decree from the District Court of Pittsburg County, State of Oklahoma, dated 14 July 2003
* a memorandum from the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, dated 22 August 1995, subject: Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15 Year Letter)
* Orders 11-10, issued by Headquarters, 95th Division (Institutional Training), Oklahoma City, OK on 11 January 1995
* Department of the Army Reserve Personnel (DARP) Form 249-1-R (Request for Correction of Chronological Statement of Retirement Points for U.S. Army Reserve (USAR) Troop Program Unit (TPU) Soldiers)
* DD Form 368 (Request for Discharge or Clearance from Reserve Component)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 26 June 1955.

2.  On 3 March 1975, the FSM enlisted in the Regular Army, where he served until 8 March 1979, when he was honorably released from active duty and transferred to the USAR.  

3.  On 27 January 1981, he enlisted in the Arkansas Army National Guard (ARARNG).  

4.  On 1 February 1982, he enlisted in the Oklahoma ARNG (OKARNG).  

5.  On 1 September 1990, he was promoted to the rank/grade of master sergeant (MSG)/E-8, with immediate appointment to the rank of first sergeant (1SG).

6.  On 9 July 1992, he was separated from the OKARNG for the purpose of immediate enlistment in the USAR.

7.  On 10 July 1992, he enlisted in the USAR in the rank/grade of 1SG/E-8.

8.  Orders 11-10, issued by Headquarters, 95th Division (Institutional Training), Oklahoma City, OK, dated 11 January 1995, released him from his current assignment and transferred him to the USAR Control Group (Retired Reserve).



9.  On 22 August 1995, ARPERCEN issued the FSM his Selected Reserve      15-year letter.  This letter notified the FSM that he had completed at least
15 qualifying years of service and he would be eligible for retired pay upon application at age 60.  Paragraph 5 of this letter contains the following language:

You are entitled to participate in the Reserve Component Survivor Benefit Plan (RC-SBP).  This 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 LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN 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 REACH AGE 60 AND APPLY FOR RETIRED PAY.  IF YOU DO NOT ELECT COVERAGE AND SHOULD YOU DIE BEFORE AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO A SURVIVOR ANNUITY.  More detailed information concerning participation in the RC-SBP and blank DD Form 1883 are enclosed.

10.  A review of the FSM's record shows he was married on at least two occasions during his period of military service.  It appears he was divorced from his wife, Cheryl, on 24 May 1982, and he married his wife, Carol, on 14 February 1985.  His record shows he married at least twice after his marriage to Carol; however, his date of divorce from Carol cannot be determined.  It is unclear whether or not he was married when he received his 15-year letter; however, it is clear he had minor children at the time.  Despite this, there is no documentation in his record that shows he elected to participate in the RCSBP after receiving his 15-year letter.

11.  On 30 May 1998, he married his wife, Gail, and on 14 July 2003, they were divorced.

12.  On 20 June 2005, he married his wife, Iris, the applicant.

13.  On 29 September 2011, over 6 years after his most recent date of marriage, the FSM completed a DD Form 2656-6, wherein he elected spouse-only SBP coverage, based on his full retired pay.  There is no indication whether or not this form was accepted by the Defense Finance and Accounting Service (DFAS).

14.  On 23 July 2012, the FSM died at the age of 57.


15.  On 10 August 2012, the applicant completed a DD Form 2656-7, wherein she requested payment of a survivor annuity based on the death of her husband.

16.  On 22 August 2012, the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), denied the applicant's request for a survivor annuity, citing the FSM's failure to make an SBP election within 90 calendar days of receipt of his 15-year letter.

17.  The applicant provides numerous documents related to her application for SBP benefits based on the FSM's death.  None of these documents provide an indication the FSM enrolled in the RCSBP when appropriate.

18.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provides a means for those who have qualified for Reserve retirement, but who are not yet age 60 [upon which they would be eligible to begin drawing retired pay, upon request, and to participate in the SBP], to provide an annuity to 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 (the member) die before age 60 but delay payment until the date the member would have reached age 60; (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 (20-year letter), or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

19.  Public Law 108-375, enacted 28 October 2004, established an open season to be conducted 1 October 2005 through 30 September 2006.  This law allowed persons not currently participating in the SBP (or RCSBP) to participate in the SBP during the open enrollment period.  Extensive publicity was given in Army Echoes, a publication mailed to all Army retirees.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive SBP annuity benefits based on the death of her husband, an FSM, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, Reserve Component Soldiers who are issued a        20-year letter (or Selected Reserve 15-year letter) are offered the opportunity to enroll in the RCSBP.  The law in effect at the time the FSM received his 15-year letter required him to make an election and return the enrollment form within 90 days of receipt.  The FSM's record does not indicate he elected to participate in the RCSBP and the applicant has not provided any evidence showing the FSM elected to participate in the RCSBP.  The FSM, by not responding to his 15-year letter, effectively deferred his SBP election to age 60.

3.  Nevertheless, the FSM had an opportunity to enroll in the RCSBP during the open enrollment season between 1 October 2005 and 30 September 2006.  There is no indication he elected to do so.  In fact, the earliest evidence of his attempted RCSBP enrollment is the DD Form 2656-6 the FSM completed in 2011, nearly 5 years after the closing of the open season window. 

4.  The FSM did not ensure the timely election of SBP benefits for his dependents.  Consequently, there is an insufficient basis to grant relief in this case.

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)                                         AR20110012544



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ABCMR Record of Proceedings (cont)                                         AR20130007305



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