IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20130021852 


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 she be paid a Survivor Benefit Plan (SBP) annuity based on her deceased husband’s service.

2.  The applicant states, in effect, that her deceased husband, a former service member (FSM), intended that she be provided an annuity upon his death; however the Reserve Component SBP (RCSBP) election form is missing from his records and she is being denied an annuity.

3.  The applicant provides a DD Form 2656-7 (Verification for Survivor Annuity), a Direct Deposit Form, a copy of her Social Security Card, the FSM’s Chronological Statement of Retirement Points, copies of her marriage license, and the FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM enlisted in the U.S. Army Reserve on 15 February 1966 and continued to serve until he was involuntarily transferred to the Retired Reserve in the pay grade of E-8 on 16 October 1995 due to maximum years of service.  He had served 29 years, 8 months, and 2 days of qualifying service for retirement.  The FSM died on 4 April 2004 at the age of 56.

3.  His records show that on 14 September 1986, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) which notified him that he had 90 days in which to make an RCSBP election or remain uncovered by the plan until he became 60 years of age and was again afforded the opportunity to participate. 

4.  On 11 October 2013, the U.S. Army Human Resources Command advised the applicant that her claim for an SBP annuity could not be considered because she had not applied within 6 years of the FSM’s death.  She was advised to apply to this Board.

5.  A review of the FSM’s official record failed to reveal any indication that the FSM made an RCSBP election.  

6.  SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members.  As a Federal Government insurance program, mainly subsidized by participant’s premiums, it is strictly governed by Federal Statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries.  Retirees do not earn SBP through their service – they earn the right to participate in SBP.  As with any private insurance endeavor, it is encumbent upon individuals to timely apply to participate.

7.  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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  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.  Before spousal notification and concurrence were required, failure to elect an option resulted in the default election of option A.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully reviewed and unfortunately appear to lack merit.

2.  The FSM had 90 days after receiving his 20-Year Letter to make his RCSBP election and there is no evidence to show that he made an election.   Therefore, it must be presumed that he elected not to make his election until he applied for retirement at age 60.

3.  Regrettably, he passed away at the age of 56, four years before he was retirement eligible.  Therefore, his family members were not eligible for SBP benefits as he was not enrolled in the program.

4.  Accordingly, there is no basis to grant the applicant’s request for SBP benefits.

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)                                         AR20130021852





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ABCMR Record of Proceedings (cont)                                         AR20130021852



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