BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130017675 


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 widower of a deceased a former service member (FSM), requests correction of his late wife's record to show he is eligible beneficiary for a Survivor Benefit Plan (SBP) annuity and retirement benefits.

2.  The applicant states that his wife, the FSM, died on 11 March 2009, 2 1/2 years prior to her being eligible for her retirement benefits.  He is her beneficiary and he is not receiving her retirement benefits.  He was married to the FSM for 20 years and he feels he is entitled to benefits.

3.  The applicant provides copies of the FSM's:

* DD Form 214 (Report of Separation from Active Duty) ending on 16 May 1975
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 15 October 1985
* DD Form 214 ending on 30 April 1991
* Orders Number 172-309
* Chronological Statement of Retirement Points
* death certificate
* his U.S. Uniformed Services Identification (ID) and Privilege Card

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 29 November 1951.  After having had prior enlisted service, she was commissioned in the Regular Army, Army Medical Department, as a first lieutenant, on 26 July 1977.
2.  The applicant and the FSM were married on 12 January 1990.

3.  She was discharged on 30 April 1991 and accepted a U.S. Army Reserve appointment.

4.  On 17 June 1998, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  The letter advised the FSM that she was eligible to participant in the Reserve Component Survivor Benefits Plan (RCSBP).  By law, if she did not submit an election within 90 calendar days from receipt of the letter (16 September 1998), she would not be entitled to survivor benefit coverage until she applied for retired pay at age 60.  If she did not elect coverage and should die before age 60, her survivors would not be entitled to benefits.

5.  There is no available evidence the FSM elected to participate in the RCSBP on or before 16 September 1998, within 90 days of her 20-Year letter.

6.  On 21 November 1998, the FSM completed a Servicemembers' Group Life Insurance Election and Certificate designating the applicant as a beneficiary along with her son (not the applicant's).

7.  Orders Number 172-309, issued by Headquarters, U.S. Army Regional Support Command, dated 21 June 1999, transferred the FSM to the Retired Reserve.

8.  The FSM died on 11 March 2009.  She would have reached age 60 on 29 November 2011.

9.  The U.S. Army Human Resources Command, Integrated Web System, shows on:

   a.  28 October 2011 - the applicant inquired about the FSM's SBP election and he was very upset that she had not returned her SBP election; therefore, under the rules there was no coverage available to him.  The applicant advised HRC that the FSM thought she would have to pay monthly and didn't realize that her SBP election wouldn't cost until age 60.  He was advised that the FSM's 20-Year letter advised her that she would not be covered if she did not make an election.

   b.  11 November 2011 - the applicant was advised that he would not receive the benefits of an ID and privilege card now that he was remarried.
   
10.  On 30 October 2013, a staff member of the Defense Finance and Accounting Service verified their office did not have any documents regarding an SBP election.
11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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; or (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 waited to elect until he/she applied for retired pay and elected to participate in the standard SBP.

12.  Public Law 106-398, enacted 30 October 2000, required Reserve and Guard members, who had completed their service obligation, considered entitled to retired pay, but who were not yet age 60, to obtain their spouse's concurrence in RCSBP elections that did not provide maximum spouse coverage (immediate option).  The law applied to members receiving notification of service completion after 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence and the applicant provided none to show the FSM, upon receipt of her 20-Year letter in June 1998, made an RCSBP election. The letter advised the FSM that if she did not make an election within 90 calendar days, she would not be entitled to elect survivor benefit coverage until she applied for retired pay at age 60.  If she did not elect coverage and should die before age 60, her survivors would not be entitled to benefits.

2.  On 28 October 2011, HRC advised the applicant that the FSM did not return her RCSBP election; therefore, no coverage was available to him.  On 1 November 2011, HRC advised the applicant that he was no longer entitled to his ID and Privilege Card now that he had remarried.

3.  By law, without an SBP election by the FSM, the applicant is not entitled to an SBP annuity.  Unfortunately, it appears the FSM chose to delay her RCSBP/SBP election until she applied for retired pay and she died before reaching age 60 and applying for retired pay.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130017675



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ABCMR Record of Proceedings (cont)                                         AR20130017675


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