BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130013191 


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 the FSM's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and that she is entitled to an annuity.

2.  She states she is a disabled widow and she is at the poverty level.  The FSM always told her whether he was active or retired if something should happen to him, she would always be taken care of because he listed her as his beneficiary. She submitted a DD Form 2656-7 (Verification for Survivor Annuity) and was denied annuity due to the FSM failing to make an election.  Based on the FSM's statement above, she knows for a fact that he did make an election within the 
90-day period and elected her as the beneficiary.

3.  She provides the following:

* DD Forms 2656-7, dated 8 February 2013 and undated
* Direct Deposit Sign-Up Form, undated
* Forms W-4P (Withholding Certificate for Pension or Annuity Payments), undated
* Chronological Statement of Retirement Points, dated 4 June 2004
* The New Benefit Amount document
* Applicant's and FSM's Certificates of Birth
* Certificate of Death
* Certificate of Marriage
* Orders D-09-143772, dated 18 September 2001
* DD Form 1172 (Application for Uniformed Services Identification Card)
* Orders 7-182-12, dated 1 July 1997
* Applicant's Social Security Card
* DD Form 214 (Report of Separation from Active Duty)
* Memorandum, Subject:  Nonselection for Continued Unit Participation, dated 3 June 1997
* U.S. Army Human Resources Command (HRC) letter, dated 22 March 2013 

CONSIDERATION OF EVIDENCE:

1.  On 13 May 1974, the FSM and the applicant were married.

2.  On 19 June 1974, the FSM enlisted in the Regular Army.  He was honorably released from active duty on 21 June 1977 and was transferred to the U.S. Army Reserve (USAR).  His date of birth is shown as 10 November 1954.

3.  On 11 December 1996, the FSM received his 20-year letter.  The letter stated that he was entitled to participate in the RCSBP which enabled him to provide an annuity for his spouse and other eligible beneficiaries.  It further stated:

BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVED THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATION (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, YOUR SURVIVORS WILL NOT BE ENTITLED TO BENEFITS.
   
4.  Details on the RCSBP and a blank DD Form 1883 (SBP Election Certificate) were listed as enclosures to the FSM's 20-year letter.

5.  The FSM's record is void of any evidence or forms to show he elected coverage under the RCSBP.

6.  On 30 July 1997, the FSM was transferred to the USAR Control Group (Reinforcement).  

7.  On 18 September 2001, he was honorably discharged from the USAR.

8.  The FSM died on 20 November 2012.  The death certificate lists his marital status as married and lists the applicant as his spouse.

9.  On 22 March 2013, the Chief, Retired Pay Branch, HRC, stated that by law, the FSM had 90 calendar days from the date he received his 20-year letter to submit a DD Form 1883.  If an election was not made within the required 90 days, he would not be entitled to SBP coverage until he applied for retired pay at age 60.  According to their records, the FSM was sent the SBP application by certified mail on 13 December 1996 and he failed to make an election.

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.

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 have waited until he/she applied for retired pay and elected to participate in the standard SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that she knows for a fact that the FSM made an RCSBP election within the 90-day period.  However, the evidence shows the FSM was sent the SBP application by certified mail on 13 December 1996 but failed to make an election.

2.  There are no documents in the available records and none were provided by the applicant which show the FSM made an election to participate in the RCSBP within 90 days of the receipt of the letter.  All available information indicates the FSM did not make an election.

3.  In the absence of evidence showing the FSM elected to participate in the RCSBP within the requirements of the law, there is no basis to now designate the applicant as the beneficiary.

4.  Regrettably, in view of the foregoing there is no basis for granting her request.

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)                                         AR20130013191





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ABCMR Record of Proceedings (cont)                                         AR20130013191



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