IN THE CASE OF:	

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130012410 


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 former service member (FSM), requests, in effect, correction of his records to show he made a Reserve Component Survivor Benefit Plan (RCSBP) election for spouse and children full coverage under Option C (immediate coverage) at the time he received his Twenty-Year Letter. 

2.  The applicant states:

	a.  She is asking for the SBP that would be due to her and her children if her deceased husband would have completed his RCSBP election paperwork.  She understands there were some years where Soldiers could be given their SBP automatically even if they did not complete the paperwork.  Her family should be afforded this opportunity.  

	b.  Her deceased husband devoted over and above 20 years serving his country.  He was terrible at dealing with paperwork but great as an officer and Soldier.  She went with him weekend after weekend to the Army National Guard (ARNG).  He passed away 3 years ago.  For employment and to support their children she has had to move twice.  They have serious needs and, because he passed away, he cannot help them.

3.  The applicant provides a memorandum, orders, certificate of marriage, certificate of death, and DD Form 2656-7 (Verification for Survivor Annuity).



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 28 February 1951.  Having had prior enlisted Reserve service, the FSM was appointed as a Reserve second lieutenant in the South Dakota ARNG (SDARNG) and executed an oath of office on 21 February 1975.  He attained the rank/grade of captain (CPT)/O-3 on 1 November 1990.

3.  On or about 20 July 1990, by memorandum, the ARNG issued the FSM a 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 would be eligible for retired pay upon application at age 60.  

4.  Enclosed with this letter was an SBP Summary which notified the FSM that he was entitled to participate in the RCSBP and that by law he had 90 calendar days from the date he received this letter to submit his SBP Election Certificate.  If he did not elect coverage, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60, and should he die before age 60, his survivor would not be entitled to benefits.  

5.  It appears the FSM was married at the time he received his Twenty-Year Letter.  His record is void of any evidence that shows he made an RCSBP election at that time.

6.  He was honorably discharged from the SDARNG on 30 August 1990 in the rank of CPT.  

7.  He enlisted in the SDARNG in the rank/grade of sergeant (SGT)/E-5 on 26 November 1990.  His DD Form 1966 (Record of Military Processing -Armed Forces of the United States), dated 26 November 1990, shows he was married at the time and had never been divorced or legally separated.  
8.  He and the applicant were married on 26 August 1994.

9.  Orders 203-041, dated 24 October 1996, issued by the Department of Military and Veterans Affairs, Rapid City, SD, discharged him from the SDARNG and transferred him to the Retired Reserve effective 5 October 1996.

10.  On 6 April 2010, the FSM died at the age of 59.  His Certificate of Death, dated 13 April 2010, shows he was married to the applicant at the time of his death and that this was his second marriage.  

11.  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;  (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 to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP.

12.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date in which that person marries or acquires that dependent child.  

13.  Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  This Open Season was extensively publicized in Army Echoes to ensure all retirees were informed of its existence.  

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve Component Soldiers who completed at least 20 years of qualifying service are issued a Twenty-Year Letter that informs them of their retirement eligibility and they are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt of the Twenty-Year Letter.  
2.  The evidence of record indicates the FSM failed to make an election at the time he was issued his Twenty-Year Letter.  If he did not have an eligible beneficiary until he married the applicant, he had 1 year to enroll her in the RCSBP.  There is no evidence that he did so.  If he did have dependents at the time he received his Twenty-Year Letter, he effectively deferred his election until age 60. As the FSM died on 6 April 2010, prior to reaching the age of 60, there was no coverage at the time of his death.

3.  In addition, the FSM had the option to enroll the applicant in the RCSBP during an open season.  There is no evidence that he did so.

4.  Regrettably, in view of the foregoing there is insufficient evidence to grant the requested 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 that 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)                                         AR20130012410





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ABCMR Record of Proceedings (cont)                                         AR20130012410



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