IN THE CASE OF:  	  

		BOARD DATE:  18 November 2014	  

		DOCKET NUMBER:  AR20140000511 


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 spouse of a deceased former service member (FSM)) requests reconsideration of a previous application to correct the records of her late husband to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.  

2.  She states:

	a.  Her husband of 22 years retired with 23 years of service to his country:  
8 years in the U.S. Army and 15 years in the Alabama Army National Guard (ALARNG).  After obtaining the rank of major/O4, he received an honorable discharge in 1996.  In 2001, he died at the age of 51 having succumbed to renal cancer.  Upon his death, he had never discussed anything regarding the military aspects of his life. 

	b.  The problem with receiving her deceased husband's retirement stems from the fact that there is no DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) in his military records.  However, it should be the responsibility of the military to ensure that all forms are completed and documented as required prior to the suspense date of the 20-year eligibility letter. 

	c.  Upon research of all his military records on file at the Retirement Services Office, there is no record of any acknowledgement of receipt of the 20-year eligibility letter.  The original retirement packet had a suspense date of 12 March 1993 to complete.  She believes that the tracking of the suspense date, to ensure that all documentation would have been completed, is the responsibility of both the unit and the individual. 

	d.  Her original appeal to this Board was denied due to the fact that the 
DD Form 1883 was not in his records; however, she never had the opportunity to accept or decline any of the three options available on the DD Form 1883.  Due to the error of omission of this form, she has been denied the retirement pay that her husband earned for his 23 years of service to his country.  

	e.  As his wife of 22 years and the mother of his two sons, one of whom is still her dependent, she feels she is entitled to all his retirement benefits.  She believes the military is partially responsible for the error in his records.  

3.  The applicant provides a copy of her previous application to this Board.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120013960, on 19 February 2013.  

2.  The applicant provides a new argument that due to the error of omission of the DD Form 1883, she was never given the opportunity to accept or decline participation in the RCSBP.  

3.  On 12 January 1993, the FSM's 20-year letter was prepared and forwarded to him for information and action.  This letter states:

This is to notify you that, having completed the required years of service, you will be eligible for retired pay upon application at age 60 in accordance with the provision of Title 10, U.S. Code, Chapter 67.  Your eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted from fraud or misrepresentation on your part.

4.  Accompanying the 20-year letter was a Survivor Benefit Counseling with a suspense date of 12 March 1993, addressed to the FSM.  This letter states:



A letter of Eligibility for Retired Pay at Age 60 is enclosed and should be delivered to the Soldier so that the DD Forms 1883 can be returned to the Personnel Service Center by the above suspense date.  Inform the Soldier that he has the option to transfer to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) or to be discharged.  A written request by the Soldier to the unit is required if he chooses to be transferred or discharged.  Request special attention be given to the following instructions:  Insure any block whether on the front side or the reverse side of the DD Form 1883 has original signatures on all three copies.  This includes the Soldier, witness and the spouse.  If the Soldier is married, the spouse must sign the reverse side of the 
DD Form 1883.  Your prompt and special attention will ensure the Soldier and his survivors receive those benefits and privileges they are entitled to.  

5.  On 15 April 1996, he was honorably discharged from the ALARNG and transferred to the USAR Control Group (Retired Reserve).  He had completed 
22 years, 9 months, and 9 days total service for pay.    

6.  A State of Alabama Certificate of Death shows the FSM's date of death as 
31 October 2001.  The certificate indicates he was 51 years of age at the time of his death and that the applicant was his spouse. 

7.  The FSM's record contains a letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), dated 25 June 2012, addressed to the applicant.  This letter shows she applied to HRC for the RCSBP annuity.  According to HRC's records, the FSM never made an election or applied for retired pay.  By law, the FSM had 90 calendar days from the date he received his 20-year letter to submit a DD Form 1883.  If an election was not made within the required 90 days, he would have had another opportunity to make another election if he would have submitted their marriage certificate within 1 full year of marriage to the Retired Pay Branch.  She was referred to the ABCMR.

8.  Public Law 95-297, dated 30 September 1978, established the RCSBP to offer survivor protection during gray area service (between the time a member qualifies for retirement and the time the member turns age 60 and can then receive retired pay).  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.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 (20-year letter) or else wait until he/she applied for retired pay at age 60 and elect to participate in the standard SBP.  

9.  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, and the default election when an election form was not submitted or is not on file is Option C.  This law is applicable to cases where the 20-year letter was issued after 1 January 2001.  The law provided no retroactive provisions for members who received a 20-year letter prior to 1 January 2001.  

10.  Title 10, U.S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last 8 years of qualifying service have been performed while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the error lies within the omission of the DD Form 1883 and the fact that she was not given the opportunity to accept or decline participation in the RCSBP.

2.  The available evidence shows a 20-year letter was prepared and forwarded to the FSM on 12 January 1993 with a suspense date of 12 March 1993.  In this letter, along with the accompanying instructions, he was given 90 calendar days to complete the DD Form 1883 and return it to his unit.  Although the instructions which accompanied this letter show that the spouse must sign the reverse side of the DD Form 1883, under the law in effect at the time spousal concurrence was not required for a Reservist to delay an RCSBP election until age 60.  The law requiring spousal concurrence with a non-participation election was not effective until 1 January 2001, and this law did not provide retroactive provisions for members who received their 20-year letter prior to this effective date.  Accordingly, the fact that she was not given the opportunity to accept or decline enrollment in the RCSBP does not constitute an error or injustice on the part of the service. 

3.  The FSM's failure to make an RCSBP election operated to defer his election of an annuity until age 60; unfortunately, he passed away at the age of 51.  As a result, he was neither eligible to apply for or receive non-regular retired pay nor to elect to participate in the RCSBP.

4.  Accordingly, the applicant is not entitled to receive any RCSBP/SBP benefits as an exception to the governing law or policy.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120013960, dated 19 February 2013.



      _______ _   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)                                         AR20140000511



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ABCMR Record of Proceedings (cont)                                         AR20140000511



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