IN THE CASE OF:	  

		BOARD DATE:  18 February 2014

		DOCKET NUMBER:  AR20130009928 


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:

	a.  She believes the record to be in error or unjust due to timing, lack of guidance, and the plain reading of the letters (FSM's 20-year letter and the U.S. Army Human Resources Command (HRC) denial letter).  Both letters reference action within 90 days.  The FSM's 20-year letter was dated 19 February 1997 and the DD Form 1883 was signed by the FSM on 27 December 1997.

	b.  Her husband was always timely and provided responses accordingly.  Although the 20-year letter is dated 19 February 1997, it is not a fact that he received the document on that date or even shortly thereafter, as the document does not appear to have been sent with any tracking information.

	c.  If, in fact, the FSM did receive the letter on or about 19 February 1997, without proper guidance from the military as to how to complete the form would have caused a delay.  She wonders if Soldiers were given guidance, assistance, or instructions for completing the form.

	d.  The DD Form 1883, dated 27 December 1997, would have been returned to the appropriate office on or about that date.  If so, she questions why they didn't receive written notification at that time informing them that the form was not submitted within the 90-day period as required.  To her, it would have been a logical step instead of notifying her 16 years later that she is not eligible.  Had the notification been given to them at that time, her husband would have been able to tell them exactly what the circumstances were.

	e.  The FSM served diligently for 35 years and spouses serve right along with their husbands.  He was given 90 days to respond upon receipt of the letter, yet the military gets 16 years to respond.  She thinks any reasonable person would feel that there was an error on the part of the military for not informing the FSM 16 years ago that there was a potential issue and this is unjust.

3.  The applicant provides:

* FSM's death certificate
* DD Form 1883
* Reserve Component Supplemental SBP Election Certificate
* FSM's Notification of Eligibility for Retired Pay at Age 60 (20 year letter)
* letter from the Chief, Retired Pay Branch, HRC, Fort Knox, KY, dated 22 April 2013

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 30 September 1955.  He and the applicant married on 12 September 1981.  Having prior active service in the Regular Army, the FSM enlisted in the U.S. Army Reserve on 18 February 1986.

2.  On 19 February 1997, he was issued his notification of eligibility for retired pay at age 60.  Paragraph 4 of this memorandum pertains to the Reserve Component SBP (RCSBP) and the DD Form 1883 and 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 stated, "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."

3.  The applicant provides a DD Form 1883, dated 27 December 1997, which shows the FSM enrolled in the SBP and elected spouse coverage, full amount, Option C (Immediate Coverage).

4.  He was transferred to the Retired Reserve on 31 January 2008 in the rank of staff sergeant.

5.  On 25 February 2013, he died at the age of 57.

6.  On 22 April 2013, HRC denied the applicant's request for the 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-day time frame
* the applicant is not entitled to a survivor benefits annuity

7.  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.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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 participate in the SBP;

	b.  elect that a beneficiary receive an annuity if they die before age 60 but delay payment 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.

9.  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 to decline enrollment and choose at age 60 whether to participate in the SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant suggests the FSM did not receive any guidance, assistance, or instructions for completing the DD Form 1883.  However, paragraph 4 of his 
20-year letter 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 stated, "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."

2.  The applicant's remaining contentions were carefully considered.  However, it appears the FSM failed to make an RCSBP election within the required 
90-calendar day time frame.  His 20-year letter was dated 19 February 1997 and his DD Form 1883 was dated 27 December 1997.

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 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)                                         AR20130009928



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ABCMR Record of Proceedings (cont)                                         AR20130009928



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