IN THE CASE OF:  	  

		BOARD DATE:  23 October 2014	  

		DOCKET NUMBER:  AR20130021044 


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 that the records of her deceased husband, a former service member (FSM), be corrected to show he made an election under the Reserve Component Survivor Benefit Plan (RCSBP) to provide her an annuity upon his death.

2.  The applicant states, in effect, that she is being denied an annuity because there is no record of the FSM having made an election under the RCSBP within 90 days of receipt of his 20-year letter.  However, there is no evidence to show that he ever received his 20-year letter as it contains no address. 

3.  The applicant provides a list of documents submitted with her application in block 17 of her application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the FSM’s records be corrected to show he made an election under the RCSBP to provide her an annuity upon his death.

2.  Counsel states, in effect, that the U.S. Army Human Resources Command (HRC) decision to deny the applicant a SBP annuity based on the fact that the FSM did not make a RCSBP election within 90 days of receipt of his 20-year letter is fundamentally flawed because the FSM’s 20-year letter does not contain an address and there is no evidence to show that the FSM ever received it.   

3.  Counsel provides a seven-page brief explaining his position along with a list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  The FSM was serving in the rank of lieutenant colonel in the United States Army Reserve (USAR) and as a Department of the Army civilian in Germany when he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 22 January 1997.  The letter does not contain an address but is posted in his Official Military Personnel File (OMPF).  It appears to have been posted in July 2008.

2.  The 20-year Letter advised the FSM that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 (RCSBP Election Certificate).  It further advised him that if he did not elect coverage and should die, his survivors would not be entitled to benefits.

3.  The FSM was promoted to the rank of colonel on 8 December 2001 and on    1 September 2006 he was transferred to the Retired Reserve with 30 qualifying years of service for non-regular retired pay purposes.

4.  The FSM died in Germany on 10 February 2011 at the age of 56.

5.  On 16 May 2011, HRC notified the applicant that the FSM did not make an RCSBP election within the 90 days prescribed by law and therefore no one was eligible to an annuity.  She was advised to apply to the Board.

6.  A review of the FSM’s official records shows that his 20-year letter is properly posted; however, it does not contain a mailing address and the available records fail to show the FSM ever made an RCSBP election.  Furthermore, contact with officials at the Defense Finance and Accounting Service (DFAS) revealed that agency has no record of having ever received an SBP election from the FSM.

7.  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.

8.  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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she should receive an SBP annuity because there is no evidence that the FSM actually received his 20-year letter or was notified that he had to make an election within 90 days has been noted and appears to have merit.

2.  The 20-year letter contained in his records does not contain a mailing address and there is no evidence to show that it was actually received by the FSM.  It was not posted to his records until July 2008, two years after he was placed in the Retired Reserve.

3.  Additionally, it is not reasonable to presume that a senior officer would ignore such an important issue had he known about it.

4.  Therefore, as a matter of equity, the FSM’s records should be corrected to show that he made a timely SBP election of spouse only full coverage and elected option C for immediate coverage.

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 that the FSM made a timely SBP election of spouse only full coverage 


and elected option C for immediate coverage and that the applicant be paid an SBP annuity effective 11 February 2011, with entitlement to the annuity from that date, less any deductions for premiums.



      _______ _   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)                                         AR20130021044





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ABCMR Record of Proceedings (cont)                                         AR20130021044



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