IN THE CASE OF:

		BOARD DATE:  18 February 2014

		DOCKET NUMBER:  AR20130008531 


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 correction of the FSM's records to show she was enrolled in the RCSBP and he was the beneficiary.

2.  The applicant states:

	a.  His spouse completed over 20 years of service in October 1998.  He was informed there was no record of an RCSBP election by his late wife and the next option for her to request RCSBP coverage was when she applied for coverage at age 60.  His wife submitted a DD Form 2656 (Data for Payment of Retired Personnel) in February 2012.  It was her intent and expectation that he be covered under the RCSBP.  

	b.  It would be an injustice if the retirement pay that she earned serving more than 20 years for her country does not go to her devoted spouse as she intended.

	c.  She applied for her military retirement in February 2012 with the anticipation of it starting in June 2012.  She at no time understood or imagined that she had not met the requirement some 15 years earlier.  She continued to be an Active Reservist and even performed active duty in support of her country after the initial form was not submitted.

	d.  She succumbed to breast cancer on 12 May 2012, 21 days prior to her 60th birthday.  She did file the form for the RCSBP as stated on the 20-year letter and it was received prior to her expiration.  

3.  The applicant provides:

* State of Alabama Marriage License 
* Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)
* Release from active duty orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Death
* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 2656
* U.S. Army Human Resources Command (HRC) letter, dated 27 March 2012
* HRC retirement orders, dated 27 March 2012
* HRC Chronological Statement of Retirement Points, dated 27 March 2012
* HRC retirement orders revocation, dated 20 June 2012
* DD Form 2656-7 (Verification of Survivor Annuity)
* Department of the Treasury, Internal Revenue Service Form W-4P
* Direct Deposit Sign-Up Form
* HRC letter, dated 6 December 2012
* HRC Chronological Statement of Retirement Points, dated 7 December 2012

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 3 June 1952.  She and the applicant were married on 
3 August 1973. 

2.  The FSM was appointed as a first lieutenant (1LT)/O-2, U.S. Army Reserve (USAR), Army Nurse Corps on 30 June 1978.  She served continuously and attained the rank of lieutenant colonel (LTC)/O-5.

3.  On 22 October 1998, the USAR Personnel Center, St. Louis, MO, issued the FSM a 20-year letter.  This letter notified her that she had completed the required years of service and she would be eligible for retired pay at age 60, upon application.  This letter further informed her that she was entitled to participate in the RCSBP and: 

By law, you have only 90 calendar days from the date you receive this letter to submit your DD Form 1883 (SBP Election Certificate).  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.  A DD Form 108, dated 20 February 2012, shows the FSM applied for retired pay effective 3 June 2012.  

5.  A DD Form 2656, dated 20 February 2012, shows the FSM elected RCSBP spouse only, based on full gross pay.  The applicant is listed as the spouse.

6.  A 27 March 2012 HRC letter shows the FSM's application for retired pay was approved and she was furnished with a Certificate of Retirement and retirement orders showing she was to be placed on the retired list effective 3 June 2012. 

7.  The FSM died on 12 May 2012.  She was 59 years old at the time.  The Certificate of Death shows the FSM was married and the applicant is listed as the surviving spouse.

8.  Orders from HRC, dated 20 June 2012, show the FSM's retirement was revoked as she was deceased.

9.  A DD Form 2656-7, dated 5 October 2012, was submitted by the applicant to verify his eligibility for the FSM's RCSBP.  

10.  A 6 December 2012 HRC letter to the applicant states that according to their records the FSM never made an RCSBP election and the death certificate verifies she passed away before reaching age 60 and before receiving retired pay.  Therefore, he is not entitled to any benefits.

11.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service), in effect at that time, 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.

12.  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 SBP 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

13.  The Department of Veterans Affairs (VA) booklet, Federal Benefits for Veterans and Dependents, 2002 edition states that Dependency and Indemnity Compensation (DIC) payments may be available for surviving spouses of deceased service members or veterans, who have not remarried.  To be eligible, the deceased must have died from (1) a disease or injury incurred or aggravated while on active duty or active duty for training; (2) an injury incurred or aggravated in line of duty while on inactive duty training or (3) a disability compensable by VA.

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, at the time, required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt or to wait until they reach age 60.  The FSM's records do not indicate she elected to participate in the RCSBP within 90 days of receiving her 20-year letter.

2.  By not responding to her 20-year letter notification, the FSM effectively deferred her SBP election to age 60.  Since the FSM died before reaching age 60, there was no coverage.

3.  The FSM's honorable service and the applicant's sincerity with regard to supporting her throughout her 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 her family.  When the FSM received her 20-year letter she was advised of the consequences of not making an election within 90 days.

4.  Regrettably, the FSM did not make an RCSBP election and she 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.

5.  The applicant may desire to inquire into his eligibility for DIC with the VA.

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)                                         AR20130008531



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