BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130013439 


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, sister of a deceased former service member (FSM), requests correction of his records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP), option B (Deferred Annuity), naming his spouse and children as beneficiaries in a timely manner.

2.  The applicant states, in effect:

* the FSM was unaware of the time frame and he completed everything to the best of his knowledge
* it was never the FSM's intention to deny his family the SBP annuity; he thought his affairs were in order
* the FSM did not know to remove his wife or apply for changes within the time limit of his notification letter
* she was immediately appointed as the guardian of the FSM's child after his death
* the FSM's daughter is enrolled in Faulkner State Community College and the income would greatly help her

3.  The applicant provides:

* self-authored statements
* letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 25 June 2013
* DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 26 April 1995
* two death certificates
* DD Form 2656-7 (Verification for Survivor Annuity)
* birth certificate
* DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), dated 10 June 2013
* DD Form 2788 (Child Annuitant's School Certification)
* James H. Faulkner State Community College transcript
* 20-Year Letter
* Chronological Statement of Retirement Points, dated 3 April 2013
* Direct Deposit Sign-up Form
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Social security card
* court order, dated 21 June 2009
* diagnostic testing results

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 7 July 1953.  After a period of honorable service in the Regular Army, he enlisted in the U.S. Army Reserve (USAR) on 23 January 1974.

2.  On 6 September 1994, the USAR Personnel Center, St. Louis, MO, sent the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  The notification informed the FSM of the following:

* having completed the required years of service, he would be eligible for retired pay upon application at age 60
* he was entitled to participate in the RCSBP
* he had 90 calendar days from the date of receipt of his notification to submit his DD Form 1883
* if he failed to submit his election within 90 calendar days he would not be entitled to SBP coverage until he applied for retired pay at age 60
* his survivors would not be entitled to benefits if he died before age 60

3.  On 26 April 1995, over 7 months later, the FSM completed a DD Form 1883 electing spouse and children full coverage RCSBP, option B (age 60).  This form appears to have been accepted and filed by Army officials in May 1995.

4.  Orders Number 319-65, issued by Headquarters, 81st Regional Support Command, Birmingham, AL, dated 15 November 1998, show the FSM was transferred to the Retired Reserve on 30 November 1998.
5.  On 18 August 2005, the FSM's spouse died.

6.  The FSM died on 18 April 2008 at the age of 54.

7.  On 10 June 2013, the applicant and the FSM's daughter submitted documents to HRC to determine eligibility for benefits based on the FSM's military service.

8.  On 23 June 2013, the Chief, Retired Pay Branch, HRC, advised the FSM's daughter that her application was being returned without action and that she was not entitled to a survivor benefit annuity because the FSM failed to submit an election within the 90-day window.

9.  The applicant provides self-authored statements, death certificates, a social security card, birth certificate, a court order, extracts of the FSM's records, a college transcript, and diagnostic test results which show the FSM's daughter was diagnosed with attention-deficit/hyperactivity disorder, predominantly inattentive type.

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.  

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.  An election must be received within 90 days of receiving one’s 20-year letter.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and 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.  The FSM's records do not indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter and it is not even clear when the letter was received.  However, it appears he made an election and HRC accepted and filed his election even though it was late.

2.  Given the fact that he submitted a DD Form 1883 on 26 April 1995, it is reasonable to presume his intent was to provide an annuity for his spouse and children.  Further, the fact that HRC accepted the form would have led him to reasonably believe his election was effective.

3.  There is a fundamental unfairness in the Government accepting a form and years later pronouncing it invalid.  Had the FSM been notified his election was invalid or even in question, he could have made other arrangements to provide for his family.

4.  Therefore, as a matter of equity, the FSM's record should be corrected to show he timely submitted his DD Form 1883 requesting full spouse and child coverage under option B and it was timely processed by the Army.

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:

   a.  showing the FSM timely submitted an RCSBP election for spouse and children coverage based on the full amount under option B within 90 days of receiving his 20-year letter;

   b.  showing the appropriate officials timely received and processed his election; and


   c.  paying the FSM's daughter an RCSBP annuity beginning the day after his
60th birthday provided she is otherwise eligible.




      _______ _   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)                                         AR20130013439



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ABCMR Record of Proceedings (cont)                                         AR20130013439



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