IN THE CASE OF:	

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130011212 


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, in effect, correction of her deceased spouse's records to show he submitted his DD Form 1883 (Survivor Benefit Election Certificate) in a timely manner with entitlement to his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states:

	a.  The reason for the noncompliance of the 90-day Reserve Component SBP (RCSBP) election is unknown.  Her deceased spouse served honorably for 24 years in the U.S. Army Reserve (USAR) which entitled him to receive retired pay at age 60.  Unfortunately, he died 2 months before he could begin collecting his pay and be entitled to the SBP to protect his family members.  

	b.  She believes this is an unfortunate situation for which she is paying the price.  She is currently facing a financial hardship due to the fact that she does not have a job and depended solely on her spouse's support.  Granting RCSBP would greatly alleviate the financial hardship that she is currently facing due to the sudden death of her spouse. 

3.  The applicant provides a:

* letter
* memorandum
* DD Form 1883
* DD Form 2656-7 (Verification for Survivor Annuity)
* Standard Form 1199A (Direct Deposit Sign-up Form)
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* social security card
* death certificate
* certificate of marriage

CONSIDERATION OF EVIDENCE:

1.  The FSM's complete military records are not available for review with this case.  It is not known if his records were not properly maintained or if many documents were lost or inadvertently destroyed.  His available records contain only two DD Forms 4 (Enlistment/Reenlistment Document - Armed Forces of the United States, seven DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report), and his Twenty-Year Letter.  However, his record contains sufficient documents for the Board to conduct a fair and impartial review of this case.

2.  The FSM was born on 29 May 1953.  He and the applicant were married on 4 September 1973.

3.  Having had prior active service, the FSM enlisted in the USAR on 5 September 1975.  He served in a Reserve unit in Puerto Rico throughout his USAR service.

4.  The applicant provides and his records contain a memorandum, dated 15 March 1995, issued to the FSM by the USAR Personnel Center, St. Louis, MO, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This memorandum notified the FSM that he had completed at least 20 years of qualifying service and he would be eligible for retired pay upon application at age 60.  It also informed him he had 90 days to make an RCSBP election.

5.  The applicant also provides a DD Form 1883, dated 7 September 1995, (also on file with the U.S. Army Human Resources Command (HRC)) wherein it shows the FSM made an RCSBP election for spouse and children full coverage under Option C (immediate coverage).  This form also shows he was married to the applicant at the time with one dependent child born on 26 June 1980.  

6.  On 6 October 1998, he was transferred to the Retired Reserve.  He completed 24 years of qualifying service for a non-regular retirement.

7.  On 18 March 2013, the FSM died at 59 years and 10 months years of age.  He was married to the applicant at the time of his death.
8.  The applicant provides a letter, dated 15 May 2013, to her from the Retired Pay Branch, HRC, wherein it stated her request for an SBP annuity was denied as according to their records, the FSM made an election but it was made past the 90 calendar days required by law.  With the letter, HRC enclosed the FSM's      20-year letter and DD Form 1883.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 (and eligible to participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

* 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

10.  By law, the DD Form 1883 had to be submitted within 90 calendar days from the date the 20-year letter was received (emphasis added).  If it was not submitted within the 90-day timeframe, the Reserve member would not be entitled to survivor benefit coverage until they applied for retired pay at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that after receiving his Twenty-Year Letter the FSM elected enrollment in the RCSBP for spouse and children coverage under Option C, immediate coverage.  Regretfully, he died in March 2013, just 2 months prior to reaching age 60.

2.  Although his Twenty-Year Letter is dated 15 March 1995, the law requires the DD Form 1883 to be submitted within 90 calendar days of receipt of the letter, not 90 days from the date of the letter.  It cannot be confirmed when the FSM actually received his Twenty-Year Letter as it is evident his records were not maintained properly.  His available records are void of his DD Form 1883 and most documents pertaining to his 24 years of service in the USAR.  

3.  It is possible the DD Form 1883 was submitted within the 90 days of the date he may have received his Twenty-Year Letter.  More importantly, if his election was not received within the required timeframe, HRC should have returned the DD Form 1883 to the FSM with notification the election was not valid instead of maintaining the form.  Had such action been taken, he would have had the opportunity to make other arrangements for the applicant's financial security rather than relying on a form that was challenged only after it was too late.

4.  In view of the foregoing, and as a matter of equity, the FSM's records should be corrected to show he submitted his DD Form 1883 in a timely manner.

BOARD VOTE:

__X____  ___X____  ___X____GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the FSM be corrected by showing he submitted his DD Form 1883 in a timely manner, it was received and processed by the appropriate office in a timely manner, and paying the applicant the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 19 March 2013, the date after her late husband died.



      _______ _   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)                                         AR20130011212





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011212



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1