BOARD DATE:   27 March 2014

		DOCKET NUMBER:  AR20130013597 


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 spouse of a deceased former service member (FSM), requests correction of the FSM's records to show he was enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and she was the beneficiary.

2.  The applicant states:

	a.  She received a letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), informing her that she is not entitled to Survivor Benefit Plan (SBP).  The letter explains she is not eligible because her spouse neither submitted an SBP Election Certificate within 90 days of his receipt of his 20-year latter nor did he apply for retirement.

	b.  She indicated he husband did receive the 20-year letter, dated 1994, and did not submit the SBP Election Certificate.  However, the letter states, "However, you remain eligible to elect into the standard Survivor Benefit Plan (SBP) upon reaching age 60 and applying for retired pay."

	c.  He submitted a DD Form 2656 (Data for Retired Pay) on 7 October 2011, indicating he elected Spouse Only SBP Coverage at the Full Gross Pay rate with the anticipation of it starting in June 2012.

	d.  He passed away on 29 January 2012, just prior to his 60th birthday.  Her understanding is that this is therefore a "gray area." 

3.  The applicant provides copies of:

* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a U.S. Army Reserve (USAR) Personnel Command letter, dated 27 June 1994 
* their State of Nevada Marriage Certificate
* her Social Security Card and Permanent Resident Card
* FSM's DD Form 2656
* State of Arizona Certificate of Death
* her DD Form 2656-7 (Verification for Survivor Annuity), dated 21 June 2012
* HRC letter, dated 24 April 2013

CONSIDERATION OF EVIDENCE:

1.  The deceased FSM was born on 24 May 1952.  He and the applicant were married on 18 August 2009. 

2.  The deceased FSM was a USAR sergeant first class (SFC)/E-7. 

3.  On 21 April 1992, the USAR Personnel Center, St. Louis, MO, issued the FSM a 20-year letter.  This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application.  This letter further informed him that he was entitled to participate in the RCSBP and: 

By law, you have only 90 calendar days from the date you receive this letter to submit your Survivor Benefit Plan Election Certificate (DD FORM 1883).  If you do not submit your election within 90 calendar days, you will not be allowed to obtain survivor benefit coverage until you apply for retired pay at age 60,  If you do not elect coverage and should die before age 60, there will be no benefits for your survivors.  More detailed information concerning participation in the Reserve Component Survivor Benefit Plan (RCSBP) and blank DD Form 1883 are enclosed.

4.  A DD Form 2656, dated 7 October 2011, shows the FSM elected SBP spouse only, based on full gross pay.  The applicant is listed as the spouse.

5.  Army Human Resources Command Orders P12-940103, dated 1 December 2011, show the FSM was to be retired and placed on the retire list effective 
1 June 2012. 
6.  The FSM died on 29 January 2012.  He was 59 years old at the time.  The Certificate of Death shows the FSM was married and the applicant is listed as the surviving spouse.

7.  A DD Form 2656-7, dated 21 June 2012, was submitted by the applicant to verify her eligibility for the deceased FSM's RCSBP.  

8.  A 24 April 2013 HRC letter to the applicant states that she is not entitled to any benefits.

9.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, RC 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, at the time, required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt or to wait until they reach age 60.  The FSM's records do not indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.

2.  By not responding to his 20-year letter notification, the FSM effectively deferred his SBP election to age 60.  Since the FSM died before reaching age 60, there was no coverage.

3.  The decision to participate or not to participate in the RCSBP/SBP is a personal decision made by the Soldier and/or his family.  When the FSM received his 20-year letter he was advised of the consequences of not making an election within 90 days.

4.  Regrettably, the FSM did not make an RCSBP election and he died prior to reaching age 60.  Therefore, the applicant does not qualify for the SBP annuity.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130005953



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ABCMR Record of Proceedings (cont)                                         AR20130013597



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