IN THE CASE OF:	  

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130011493 


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 requests that she be designated as the beneficiary of her deceased husband’s Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states, in effect, that her husband was a former service member (FSM) who had been retired for 10 years before his untimely demise and failed to update his RCSBP election which was not discovered until she applied for and was denied benefits.

3.  The applicant provides a one-page handwritten letter explaining her application, copies of the FSM’s Divorce Decree, Marriage License, Death Certificate, Last Will and Testament, and the denial of her application for RCSBP benefits.

CONSIDERATION OF EVIDENCE:

1.  The FSM served on active duty in the Regular Army from 11 July 1978 until he was honorably discharged on 1 June 1992 under the Fiscal Year 1992 Enlisted Voluntary Early Separation Program.

2.  On 5 December 1992 he enlisted in the North Carolina Army National Guard (NCARNG) and served through a series of continuous reenlistments.  He was issued his 20-year letter on 16 November 2000 and was also issued a memorandum informing him and his then spouse that he had to submit a RCSBP Election no later than 21 February 2001.  He and his spouse acknowledged the requirement. 

3.  On 15 May 2002 the applicant and his spouse submitted an SBP election for full spouse and children coverage under option C for immediate coverage.  

4.  The applicant was transferred to the Retired Reserve Control Group on          7 March 2003 and on 29 August 2003 he divorced his spouse.

5.  He married the applicant on 28 December 2006 and on 14 January 2012 he passed away at the age of 52.

6.  On 12 October 2012, officials at the Human Resources Command (HRC) at Fort Knox, Kentucky notified the applicant that the FSM did not submit his RCSBP election (DD Form 1883) within 90 days of receiving his 20-Year letter; therefore, he was not entitled to SBP coverage until he reached age 60.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members.  As a Federal Government insurance program, mainly subsidized by participant’s premiums, it is strictly governed by Federal Statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries.  Retirees do not earn SBP through their service – they earn the right to participate in SBP.  As with any private insurance endeavor, it is encumbent upon individuals to timely apply to participate.

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 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 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Spousal notification and concurrence are required only if the member elects to participate in the RCSBP for less than full spouse coverage.  A member must make 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.  Before spousal notification and concurrence were required, failure to elect an option resulted in the default election of option A.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully reviewed and appear to lack merit.

2.  The FSM had 90 days after receiving his 20-Year letter to make his RCSBP election but did not make his election until 18 months later.  Accordingly, his election was not accepted and he was not eligible to make an election until he applied for retirement at age 60.

3.  Regrettably, he passed away at the age of 52, eight years before he was retirement eligible.  Therefore, his family members were not eligible for SBP benefits as he was not enrolled in the program.

4.  Accordingly, there is no basis to grant the applicant’s request for SBP benefits.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  While the Board regrets that a more favorable response could not be accomplished, it wishes to extend its deepest condolences to the applicant on the passing of her late husband, and wants to thank the applicant for the sacrifices he made in service to the United States.  The applicant and all Americans should be justifiably proud of his honorable service in arms.



      _______ _   _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)                                         AR20130011493





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ABCMR Record of Proceedings (cont)                                         AR20130011493



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