IN THE CASE OF:
BOARD DATE: 27 May 2014
DOCKET NUMBER: AR20130015942
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, that the records of her deceased husband, a former service member (FSM), be corrected to show that he timely applied for Reserve Component Survivor Benefit Plan (RCSBP) spouse only coverage upon receipt of his 20-Year letter.
2. The applicant states, in effect, that the FSM submitted his RCSBP election on 14 May 1994 electing full spouse coverage; however, he did not submit the form within 90 days of receiving his 20-Year letter; therefore, she is being denied benefits. She goes on to state that the FSM died 6 days after turning age 60.
3. The applicant provides copies of the denial of SBP benefits from the U. S. Army Human Resources Command (HRC), DD Form 1883 (Survivor Benefit Plan Election Certificate), the FSMs death certificate, marriage license, 20-Year letter, an application for retirement under Federal Employees Retirement System, letters from the applicant's counsel to HRC, and two third-party letters.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the applicant be granted RCSBP benefits.
2. Counsel states that although the FSM's RCSBP election was not accepted which caused the election to be deferred until his retirement, the FSM suffered and subsequently died from Metastatic Nasopharyngeal Cancer just after reaching the age of 60 and believed that he had made proper arrangements for the applicant to receive his survivor benefits.
3. Counsel provides no additional documents with the application.
CONSIDERATION OF EVIDENCE:
1. The FSM was serving in the U.S. Army Reserve (USAR) in the pay grade of E-7 when he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter), dated 28 July 1993. His 20-Year letter advised him that he was eligible for retired pay upon application at age 60. He was also advised (in bold print) that he was required by law to submit his DD Form 1883 within 90 calendar days of receiving his 20-year letter.
2. The FSM signed his DD Form 1883 on 14 May 1994, 10 months after his
20-Year letter was issued. It is date-stamped as being received on 29 June 1994.
3. The FSM continued to serve in the USAR until he was transferred to the USAR Control Group (Retired) on 21 February 2012 on his 60th birthday. There is no evidence in the available records to show that he applied for a non-regular retirement.
4. On 2 March 2012, the FSM died in hospice care of Metastatic Nasopharyngeal Cancer.
5. On 26 July 2012, officials at HRC notified the applicant that the FSM did not submit his DD Form 1883 within 90 days of the date he received his 20-Year letter; therefore, it was not a valid election and he had to wait until he applied for retirement to make his SBP election. Accordingly, the applicant was not entitled to any benefits.
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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the members retired pay.
7. Title 10, U.S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age and has performed at least 20 years of qualifying service.
DISCUSSION AND CONCLUSIONS:
1. Applicants counsels contention that the FSM believed he successfully enrolled in the RCSBP in a timely fashion is accepted.
2. As counsel notes, the issue date of the FSMs 20-Year letter was 28 July 1993 and there is no evidence with regard to when the letter was received and the 90-day enrollment period began to run. Nevertheless, it was accepted by an official office for filing. Had the FSM been informed at the time that it was an invalid election he could have made other arrangements to provide survivor protection for the applicant.
3. Accordingly, given the FSMs clear intent to enroll in the RCSBP for spouse only coverage, it would be equitable to correct his records to show the DD Form 1883 was timely received and processed by the appropriate office.
4. On a separate but related issue, it would be appropriate to show the FSM applied for retired pay. Accordingly, the applicant is entitled to any retired pay that accrued between the FSMs 60th birthday and 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 the FSM enrolled in RCSBP for spouse only coverage on 28 July 1993 and his election was accepted in a timely fashion
* correcting his records to show he applied for retired pay in a timely fashion and designated the applicant as his beneficiary for unpaid retired pay
* paying the applicant the RCSBP annuity beginning the day after the FSMs death minus any applicable premiums and paying the applicant any pay accrued from the FSMs 60th birthday
_______ _ _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) AR20130015942
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