BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011221 


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 her husband's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) with spouse coverage.

2.  The applicant states her husband made an election under the RCSBP on
29 June 1993 and trusted that the paperwork was placed in his military records. 

   a.  On 15 October 2011, after attaining age 60, he applied for his Army retired pay and benefits.  Shortly thereafter he passed away and the documentation was returned because it lacked complete information.

   b.  She attempted to resolve the SBP issue.  However, on 10 March 2012, the U.S. Army Human Resources Command (HRC) informed her that her husband never made an RCSBP election nor did he apply for retired pay.

3.  The applicant provides copies of their marriage certificate; the FSM's death certificate, service records, an SBP election, and request for retired pay; and the denial.

CONSIDERATION OF EVIDENCE:

1.  The FSM had honorable enlisted service in the Regular Army from 1 March 1971 through 28 February 1974 and he transferred to the U.S. Army Reserve (USAR) to complete his Reserve obligation.  Records show he was born on 
30 March 1951.
2.  He continued to serve in the USAR and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 31 October 1984.

3.  A review of the FSM's military service records show he married Mollie B--- on 14 August 1974 and that they divorced on 28 July 1988.  The divorce decree is silent with respect to the FSM's Army benefits (e.g., retired pay, SBP, etc.).

4.  A State of Louisiana, Marriage License, shows the FSM married the applicant (Barbara T. S-------) on 8 November 1988.

5.  On 7 June 1993, the Chief, Retired Activities Division, USAR Personnel Center, St. Louis, MO, notified the FSM that his eligibility for retired pay had been established upon attaining age 60.  He was also notified of his entitlement to participate in the RCSBP established by Public Law 95-397.  The memorandum states "[t]his 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 memo to submit your SBP - 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 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 RCSBP and a blank DD Form 1883 are enclosed."

6.  Orders 57-18, issued by Headquarters, 122d USAR Command, North Little Rock, AR, dated 23 July 1994, assigned the FSM to the USAR Control Group (Retired Reserve) effective 29 November 1993.

7.  A review of the FSM's records failed to reveal a copy of a DD Form 1883.

8.  In support of her application she provides copies of the following documents.

	a.  A State of Louisiana, Vital Records Registry, Certificate of Death, filed on 22 November 2011, that shows the FSM died on 19 November 2011.  It also shows the FSM was married at the time of his death and the applicant's name is listed as the surviving spouse on the certificate.
   
   b.  A DD Form 1883 that shows the FSM indicated he was married to Barbara T. (the applicant) on 12 November 1988 and he had three dependent children.  He elected spouse and children coverage based on the full amount of retired pay with RCSBP Option C (Immediate coverage).  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the FSM placed a checkmark in the "Yes" block.  The DD Form 1883 also shows the FSM and a witness, apparently a member of the FSM's unit, placed their signatures on the document on 29 June 1993.

   c.  Two DD Forms 108 (Application for Retired Pay Benefits), both dated
15 October 2011, and two DD Forms 2656 (Data for Payment of Retired Personnel), both unsigned and undated, that show the FSM was married to Barbara T. (the applicant), he had two dependent children, and he designated the applicant as the beneficiary to receive any unpaid retired pay due the FSM at death.  The documents are silent with respect to an SBP election.

   d.  A DD Form 2656-7 (Verification for Survivor Annuity), dated 21 February 2012; DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), dated 21 February 2012; and two DD Forms 2788 (Child Annuitant's School Certifications), both dated 24 February 2012, with direct deposit and tax withholding forms that show the applicant applied for the SBP survivor annuity for herself and two dependent children.

   e.  An HRC memorandum, dated 10 March 2012, that shows the Chief, Retired Pay Branch, notified the applicant that records showed the FSM failed to make an election within the required 90 calendar-day time frame of being eligible to receive retired pay at age 60 nor did he apply for retired pay.  Therefore, she was not entitled to any benefits.

9.  In connection with the processing of this case, the Defense Finance and Accounting Service (DFAS) was asked to verify information relevant to the FSM's retired pay account, and SBP election, coverage, and participation.  A DFAS official indicated they did not have any information on file pertaining to the FSM.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Retiring members and spouses were to be informed of the SBP options and effects.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 are available:  (A)  elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (B)  elect that a beneficiary receive an annuity if the service member dies before age 60, but delay payment of it until the date of the member's 60th birthday; and 
(C)  elect that a beneficiary receive an annuity immediately upon the service member's 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 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  Failure to elect an option resulted in the default election of Option A.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her deceased husband should be corrected to show he enrolled in the RCSBP with spouse and children coverage.

2.  Records show, on 7 June 1993, the FSM was notified he had completed
20 years of credible service for retired pay at age 60.

	a.  There is no evidence in the FSM's military service records that shows he made an RCSBP election within 90 days of receipt of this notification.  As such, the FSM's failure to make an election should have resulted in the default election of Option A (i.e., elect to decline enrollment and choose at age 60 whether to start standard SBP participation).

   b.  However, the applicant provides a copy of a DD Form 1883 that shows, on 29 June 1993, the FSM elected RCSBP with spouse and children (immediate coverage) full base amount.  The form is witnessed by an individual who included his rank and component, thus appearing to have signed in an official capacity.  It is unclear why this form was not properly transmitted or received at HRC.

   c.  The FSM was assigned to the Retired Reserve on 29 November 1993.

3.  The FSM attained age 60 in March 2011.  The evidence of record shows he applied for retired pay on 15 October 2011 and designated the applicant as the beneficiary to receive any unpaid retired pay due at death.  It appears the FSM's health was failing at the time he submitted his application based on the infirmity apparent in his handwriting.

4.  The FSM died on 19 November 2011.  His application for retired pay was returned for correction after his death.

5.  In view of the foregoing and as a matter of equity, the FSM's records should be corrected to show he elected immediate spouse and child RCSBP and it was received by HRC on 30 June 1993.  In addition, the FSM's records should be




corrected to show his application for retired pay was made known to DFAS on
30 March 2011.  Further, based on these record corrections, it would be appropriate to provide the applicant all unpaid retired pay due the FSM until the date of his death.  In addition, it would also be appropriate to provide the applicant the FSM's SBP annuity effective 20 November 2011.

BOARD VOTE:

__x___  _____x___  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 individual concerned be corrected by showing the FSM timely applied for the RCSBP and it was timely received by the proper authority on 30 June 1993, and that his application for retired pay was timely and properly processed.  

2.  As a result of these record corrections, DFAS shall pay the applicant all retired pay due from 30 March 2011 that the FSM was due until the date of his death (19 November 2011), but was not paid.  In addition, the applicant shall be paid the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 20 November 2011.

3.  The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her eligibility for Army benefits.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.



      _______ _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)                                         AR20130011221



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ABCMR Record of Proceedings (cont)                                         AR20130011221



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