BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130011539 


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, in effect, correction of the record of her deceased husband, a former service member (FSM), to show he made a timely election for Reserve Component Survivor Benefit Plan (RCSBP) coverage.   

2.  She states:

	a.  After the FSM passed away, she received a letter stating she was not eligible for the RCSBP because his RCSBP election form had not been submitted within the 90-day window following his receipt of notification of eligibility for retired pay upon reaching age 60 (20-year letter).  She states the FSM was discharged from the Wisconsin Army National Guard (WIARNG) and transferred to U.S. Army Reserve (USAR) (Reinforcement) on 26 July 2000.  

	b.  On 7 January 2001, his unit gave him his 20-year letter and had him make an RCSBP election.  She notes that the WIARNG uses a form to document receipt of the 20-year letter and an RCSBP counseling statement.  Units hold the 20-year letter until the Soldier can meet with the unit and receive information about the RCSBP to make an informed decision.  The Soldier is in receipt of the 20-year letter after meeting with the unit, not before.  

	c.  A DD Form 1883 (SBP Election Certificate) was completed on 7 January 2001.  On 2 February 2001, the form was sent to the U.S. Army Reserve Personnel Command (AR-PERSCOM), St. Louis, MO, well within the 90-day window.  

3.  She provides:

* Original Certificate of Death
* self-authored timeline
* 20-year letter
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* orders
* list entitled Overdue SBPs
* WIARNG Form 75-E (Acknowledgement of Receipt)
* DD Form 1883
* ARPC Form 3854 (Reserve Component Supplemental SBP (RC-SSBP) Election Certificate)
* WIARNG letter informing her of RCSBP options
* list entitled SBP/Retirement Packets Sent to AR-PERSCOM in St. Louis by Federal Express
* DD Form 2656-7 (Verification for Survivor Annuity)
* Marriage License and Certificate of Marriage
* Driver License
* ARNG Retirement Points History Statement
* letters from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC)
* e-mail

CONSIDERATION OF EVIDENCE:

1.  The FSM had prior enlisted service in the Regular Army, USAR, and Minnesota ARNG and prior commissioned service in the North Dakota ARNG.  On 23 July 1991, he was appointed as an officer in the WIARNG.   

2.  On 1 February 2000, the Office of the Adjutant General, Department of Military Affairs, State of Wisconsin, issued a memorandum to the FSM, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  The memorandum does not reference a requirement to make an RCSBP election within 90 days of receipt.

3.  Effective 26 July 2000, he was honorably discharged from the WIARNG by reason of resignation and transferred to USAR Control Group (Reinforcement).  Effective 1 February 2002, he was assigned to the Retired Reserve.

4.  The applicant provides an Original Certificate of Death showing the FSM died on 16 February 2013.  The document lists the applicant as his surviving spouse.  
5.  The applicant provides several other documents in support of her request.

	a.  A letter from the WIARNG, dated 29 November 2000, to the applicant informed her of the available RCSBP options.  She acknowledged receipt of the letter on 7 January 2001.  

	b.  A DD Form 1883 signed by the applicant on 6 January 2001 and by the FSM on 7 January 2001 shows he elected full RCSBP coverage for spouse and children and Option C (immediate coverage).  

	c.  An ARPC Form 3854 shows he declined RC-SSBP on 7 January 2001.  

	d.  A WIARNG Form 75-E shows that on 7 January 2001 the FSM acknowledged receipt of his 20-year letter and confirmed he had completed a DD Form 1883 and ARPC Form 3854.  The form was signed by an RCSBP counselor on the same date.

	e.  Letters, dated 23 and 31 May 2013, from the Chief, Retired Pay Branch, HRC, informed the applicant that she was not entitled to an RCSBP annuity because the FSM had not submitted an RCSBP election within 90 calendar days of receipt of his 20-year letter.  

	f.  An e-mail, dated 3 June 2013, from a Service Retirement Specialist, WIARNG, to the Chief, Retired Pay Branch, HRC, shows the Service Retirement Specialist confirmed the FSM did not receive his 20-year letter until 7 January 2001 and had made his RCSBP election within 90 days of receipt of the letter.  

6.  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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility (emphasis added) to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.



DISCUSSION AND CONCLUSIONS:

1.  The FSM's 20-year letter was prepared on 1 February 2000, but the evidence of record shows his unit did not give him the letter until 7 January 2001.  This is the date he signed a DD Form 1883 electing full RCSBP coverage for spouse and children and Option C (immediate coverage).  This is also the date his wife acknowledged receiving information on RCSBP and meeting with the unit RCSBP/SBP counselor.  

2.  An extraordinary amount of time elapsed between the date his 20-year letter was prepared and the date he acknowledged receipt of the letter.  However, it appears that, as the applicant asserts, the WIARNG had an administrative process in place under which units held 20-year letters until the Soldier was able to meet with a counselor.  In this case, the record shows that meeting did not take place until 7 January 2001.  

3.  In light of the available evidence, it would be appropriate to correct the FSM's record to show his RCSBP election was made and processed in a timely fashion after the issue date of this 20-year letter and paying the applicant the RCSBP annuity in accordance with his election effective the day after his death.  

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 individual concerned be corrected by showing he submitted his properly-prepared RCSBP election for spouse and children coverage, full base amount, Option C, in a timely manner (on 7 January 
2001, within 90 days of receiving his 20-year letter as required by law) and 


paying the applicant the RCSBP annuity in accordance with his election effective the day after his death.
      
      
      
      _______ _  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)                                         AR20130011539





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ABCMR Record of Proceedings (cont)                                         AR20130011539



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