IN THE CASE OF:
BOARD DATE: 5 February 2014
DOCKET NUMBER: AR20130008631
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 his records to show a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) was filed in a timely manner.
2. The applicant states:
* the address on the FSM's 20-year letter was incorrect and he did not receive it on time
* her application for survivor benefits annuity was denied because the FSM did not return the DD Form 1883 within the given timeframe
3. The applicant provides:
* letter, dated 26 April 2013, from the applicant to the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY
* letter, dated 16 April 2013, from HRC
* FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* service personnel records
* FSM's death certificate
* marriage certificate
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 23 February 1954. Having prior active service in the Regular Army, he enlisted in the U.S. Army Reserve on 3 October 1978. He and the applicant married on 21 February 1981.
2. On 21 May 1996, he was issued his notification of eligibility for retired pay at age 60. Paragraph 4 of this memorandum pertains to the RCSBP, and the DD Form 1883 informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. This form also states "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits." This letter shows an address in Carolina, PR.
3. The FSM's DD Form 1883, dated 5 November 1997, shows he enrolled in the SBP and elected spouse and children coverage, full amount, and Option C (Immediate Coverage).
4. He was transferred to the Retired Reserve on 15 December 1997 in the rank of staff sergeant due to medical disqualification.
5. On 11 February 2013, he died at the age of 58.
6. On 16 April 2013, HRC denied the applicant's request for survivor benefits annuity. The denial letter states:
* by law, the FSM had 90 calendar days from the date he received his
20-year letter to submit a DD Form 1883
* according to HRC records, the FSM made an election, but the election made was past the 90 calendar days required by law as highlighted on his 20 year letter
* the applicant is not entitled to a survivor benefits annuity
7. The applicant provides a letter, dated 26 April 2013, she wrote to HRC stating the address on her husband's 20 year letter was incorrect and he did not receive it on time. She provides two service personnel records, dated 1993 and 1997, which show an address in Carolina, PR, but not the exact address as shown on his 20 year letter.
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
9. Public Law 95-397, the Reserve Component SBP, 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 were 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.
10. Before the law was amended in October 2000, 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 applied for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of option A, decline enrollment and choose at age 60 whether to start SBP participation.
DISCUSSION AND CONCLUSIONS:
1. It appears the FSM failed to make an RCSBP election within the required
90 calendar day time frame. His 20-year letter is dated 21 May 1996 and his
DD Form 1883 was dated 5 November 1997.
2. Although the applicant contends the FSM did not return the DD Form 1883 within the given time frame because of an incorrect address on his 20-year letter, it is the Soldier's responsibility to keep his unit informed of his current address.
3. The law required the RCSBP election to be made within 90 days of receiving the 20-year letter or the opportunity to elect coverage was deferred until age 60.
4. Regrettably, there is insufficient evidence to show the FSM completed the
DD Form 1883 in the required time frame. Therefore, there is no basis in equity for 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) AR20130008631
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ABCMR Record of Proceedings (cont) AR20130008631
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