IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20130022283 


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 spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage.

2.  The applicant states she believed she needed to wait until the FSM would have reached the age of 60 to pursue her survivor benefits.   

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's eligibility for an RCSBP annuity be established and that she be paid based on the DD Form 1883 (SBP Election Certificate) submitted by the FSM.

2.  Counsel states the applicant was denied survivor benefits because the FSM never made an election.  This finding is incorrect and unjust.

* the FSM completed 20 of years service and a 20-year letter was sent to him
* he completed and submitted a DD Form 1883, electing to participate in the RCSBP for spouse only coverage - a date stamp "11 Jan 1996" is noted on the form
* the FSM sent a follow-up letter to the Department of the Army, U.S. Army Reserve Personnel Center (ARPERCEN, now known as the U.S. Army Human Resources Command (HRC)), St. Louis, MO dated 20 December 1995, seeking verification of receipt of his election
* the FSM contacted his Congressional representative who made an inquiry to the Defense Finance and Accounting Service (DFAS)
* in a letter, dated 14 May 1997, to the FSM's Congressional representative, DFAS stated the FSM's SBP Election Certificate was submitted to ARPERCEN for processing
* the FSM died on 4 June 2004 at the age of 51
* the applicant's application for SBP benefits was denied on the basis that the FSM never made an election even though his records as of May 1997 clearly document that such an election was made

3.  Counsel provides:

* an undated letter from HRC
* DD Form 1883, dated 10 June 1995
* ARPC Form 3854 (Reserve Component Supplemental SBP (RC-SSBP) Election Certificate)
* certificate of marriage 
* a memorandum, dated 30 May 1994, from ARPERCEN
* a letter, dated 20 December 1995, from the FSM to ARPERCEN
* a letter, dated 14 March 1997, from the FSM's Congressional representative to DFAS
* a letter, dated 14 May 1997, from DFAS to the FSM's Congressional representative
* certificate of death 

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.  On 1 November 1972, the FSM enlisted in the U.S. Army Reserve (USAR).  The FSM and the applicant were married on 23 March 1974.
3.  On 30 May 1994, ARPERCEN issued the FSM a 20-year letter notifying him that he had completed the required years of service to be eligible for retired pay on application at age 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 67.  In paragraph 4 of the letter he was informed he was entitled to participate in the RCSBP to provide an annuity for his spouse, and other eligible beneficiaries.  In bold and underlined letters he was informed that by law, he had only 90 calendar days from the date he received the letter to submit his DD Form 1883.  Failure to submit his election within 90 calendar days would result in him not being entitled to survivor benefit coverage until he applied for retired pay at age 60.  If he did not elect coverage within 90 calendar days and should die before age 60, his survivors would not be entitled to benefits.

4.  On 10 June 1995, the FSM submitted a DD Form 1883.  He indicated he was married with dependent children.  He elected to provide spouse only SBP coverage based on the full amount of his retired pay under Option C (beneficiary to receive an annuity immediately upon his death if before age 60).  The date 
"11 Jan 1996" is stamped in the upper left hand corner of the form.  He also submitted an ARPC Form 3854 electing RC-SSBP coverage at the level of 
20 percent.

5.  On 30 September 1995, he was transferred to the Retired Reserve.

6.  In a letter, dated 20 December 1995, the FSM requested confirmation of receipt of his SBP Election Certificate at ARPERCEN.  There is no record of a response to his inquiry.

7.  A letter, dated 14 May 1997, from DFAS to the FSM's Congressional representative stated the FSM's SBP Election Certificate was submitted to ARPERCEN for processing.

8.  On 4 June 2004, the FSM died at the age of 51.

9.  In an undated letter HRC denied the applicant RCSBP benefits because the FSM had not made an RCSBP election or applied for retired pay.

10.  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.  Spousal notification was required only if the member elected to participate in the RCSBP for less than full spouse coverage.  Before the law was amended as noted below, a member must have made 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.  In other words, failure to elect an option resulted in the default election of option A.  

11.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

12.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Any such election shall be effective as of the first day of the first calendar month following the 
month in which the election is received by the Secretary concerned.
The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army, warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was fairly high, the enrollment premium alone could exceed $50,000.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's 20-year letter is dated 30 May 1994.  The letter specifically told him he had 90 calendar days from the date he received the letter to submit his DD Form 1883.

2.  The DD Form 1883 submitted by the FSM is dated 10 June 1995, over a year after the date of his 20-year letter.  Therefore, he is considered as having not made an election and the result is a default election to option A.  

3.  Based on the law in effect at the time, his failure to elect an option within 
90 calendar days resulted in a default election of option A; i.e., to decline enrollment and choose at age 60 whether to start SBP participation.  Unfortunately, he passed away before age 60.   At the time of receiving his 
20-year letter spousal concurrence was not required for him to delay making an election until age 60.

4.  In a letter, 20 December 1995, the FSM requested confirmation of his SBP Election Certificate from ARPERCEN.  There is no record of a response.  He continued checking on the status of his election as evidenced by the DFAS letter to his Congressman.  DFAS simply stated the FSM's SBP Election Certificate had been submitted to ARPERCEN for processing.  At no time was the FSM informed that his SBP Election Certificate had been submitted late and was not valid.  

5.  The Government's failure to provide him with an accurate answer led him to believe his RCSBP election was being processed and deprived him of an opportunity to enroll in the RCSBP during the Open Season from 1 March 1999 through 29 February 2000.  If the FSM had been told his RCSBP Election Certificate was invalid it is reasonable to conclude, based on his continued attempts to verify his election, that he would taken advantage of the Open Season from 1 March 1999 through 29 February 2000.

6.  Therefore, as matter of equity it is appropriate to change the FSM's records to show he enrolled in the RCSBP for spouse only coverage based on full amount of his retired pay under Option C during the Open Season from 1 March 1999 through 29 February 2000 and elected RC-SSBP coverage at the level of 20 percent at that time.

7.  It is also appropriate to change the FSM's records to show his widow (the applicant) applied for SBP benefits on 5 June 2004, the day after his death.

8.  The ABCMR recognizes its fiduciary duty in protecting the viability of the SBP. In order to grant relief, the ABCMR recognizes that all SBP premiums due as a result of the above action must be paid into the SBP.  As the FSM is deceased, this burden necessarily falls on the applicant.  To the extent that these premiums should have rightfully been paid by the FSM, the applicant’s recourse is limited to an action against the FSM’s estate.

BOARD VOTE:

____X____  __X______  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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:

	a.  Showing that during the Open Season from 1 March 1999 through 
February 2000 the FSM enrolled in RCSBP on 1 March 1999, to be effective 
1 February 2000, for spouse only coverage based on the full amount of his retired pay under Option C and elected RC-SSBP coverage at the level of 20 percent at that time.

	b.  Showing his widow (the applicant) applied for SBP benefits on 5 June 2004.

2.  The applicant is responsible for payment of the SBP premiums due and payable since the FSM’S retirement as a result of the above corrections.



      _______ _   __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)                                         AR20130022283



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ABCMR Record of Proceedings (cont)                                         AR20130022283



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