BOARD DATE: 15 July 2014
DOCKET NUMBER: AR20130018420
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 entitlement to his Survivor Benefit Plan (SBP) annuity.
2. The applicant states her deceased spouse did not receive proper instructions or counseling regarding his Reserve Component SBP (RCSBP). Without proper instructions, the FSM was not equipped to make a good decision regarding his SBP options during his final military outprocessing as an Active Guard Reserve (AGR) in 1999. She is currently surviving on her income while raising her granddaughter. The FSM informed her that she was the sole beneficiary of his SBP; he was a career Soldier and they were married for 37 years.
3. The applicant provides the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), DD Form 1883 (SBP Election Certificate), DD Form 2656 (Data for Payment of Retired Personnel), DD Form 2656-7 (Verification for Survivor Annuity), direct deposit form, a form titled Withholding Certificate for Pension or Annuity Payments, Army National Guard (ARNG) Current Annual Statement, Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), marriage certificate, death certificate, social security card, two memoranda, and a letter.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 4 January 1949. Having had prior Reserve service, he enlisted in the Tennessee ARNG (TNARNG) on 15 February 1974. He and the applicant were married on 16 May 1976.
2. He entered active duty as a member of the ARNG in an AGR status on 19 January 1981.
3. On 24 November 1993, the TNARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This memorandum notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. Enclosed with this letter was an SBP summary which notified him that he was entitled to participate in the RCSBP.
4. The applicant provides and the FSM's records contain a DD Form 1883, dated 15 December 1993, wherein he indicated he was married at the time with four dependent children. This form shows he elected "spouse and children" full coverage under Option C (immediate coverage). The FSM and the applicant each signed this form on 15 December 1993.
5. He retired from active federal service on 31 July 1999 in the rank/grade of first sergeant (1SG)/E-8 by reason of sufficient service based on his more than 20 years of active federal service and placed on the Retired List on 1 August 1999.
6. The FSM died on 10 July 2013; he was married to the applicant at the time of his death.
7. The applicant provides a letter, dated 19 September 2013, from the Defense Finance and Accounting Service (DFAS) in response to her request for the SBP annuity based on the death of the FSM.
a. The DFAS official stated she was not entitled to the annuity and records showed the FSM elected "children only" SBP coverage at the time of his retirement and she had concurred with the election.
b. Enclosed with the letter was a DD Form 2656, dated 28 July 1999, wherein the FSM indicated he was married at the time with three dependent children. This form shows he changed his RCSBP election of "spouse and children" coverage to "children only" coverage, full base amount. The FSM and applicant signed this form on 28 July 1999 and their signatures were witnessed by an official from the Retirement Services Office, Fort Campbell, KY.
8. On 11 June 2014, by email, an official with DFAS, Retired and Annuity Pay Branch, verified the FSM had "children only" SBP coverage.
9. 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.
9. 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 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.
10. Title 10, section 1447(3) defines the RCSBP as, in effect, an annuity provided by virtue of being eligible for RC retired pay but for the fact the member is under 60 years of age. It provides, in effect, that once Reservists retire under an active duty retirement law they are no longer eligible for RC retired pay or RCSBP. When the retirement is under an active retirement law, the election is no longer based on the RCSBP election and they must make a new, standard SBP election.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests entitlement to her deceased spouse's SBP annuity and contends he did not receive the proper counseling to make a good decision regarding his SBP election options when he retired in 1999.
2. The evidence of record confirms that on 15 December 1993, upon receipt of his 20-Year Letter, the FSM elected RCSBP "spouse and children" coverage under Option C (immediate coverage), full base amount. However, as he was retired under an active federal service retirement law, this election was no longer valid and on 28 July 1999, he elected SBP for "children only."
3. Notwithstanding the applicant's contention, it is reasonable to presume the FSM fully understood the ramifications of the change in his election in 1999 as he held the rank of 1SG at the time he retired and he had previously made an RCSBP election. He signed the DD Form 2656 and the applicant also signed the form to indicate her knowledge and concurrence of his election of "children only" SBP coverage. In addition, the FSM would have paid only "children only" SBP premiums for almost 14 years prior to his death so there should have been no confusion as to the type of coverage he had.
4. 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) AR20130018420
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