IN THE CASE OF: 

		BOARD DATE: 28 January 2014

		DOCKET NUMBER:  AR20140001210 


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, through his Member of Congress, correction of his records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) prior to age 60.

2.  The applicant states:

	a.  He completed 26 years of military service (4 years active duty and 
22 years in the National Guard and Army Reserve).  At the time he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) in July 2000, his reserve unit was undergoing a transition and was without a qualified personnel specialist.  The letter does not provide any contact information to discuss questions or concerns regarding participation in the RCSBP.  Based on his civilian employment with the U.S. Army Corps of Engineers, he thought the RCSBP to be an "opt-out" situation similar to the Civil Service Retirement System (CSRS).  He notes the RCSBP was changed the following year to be an "opt-out" requirement.  It was his intention that he participate in the RCSBP and had he been afforded appropriate counseling he would have understood the requirements better and would have submitted the required paperwork in a timely manner.

	b.  He has been diagnosed with stage 4 cancer and his prospect of living to age 60 is marginal.  Without some intervention his wife of 36 years will not receive the RCSBP annuity she is rightfully entitled to if he dies before age 60 without the paperwork being corrected.


3.  The applicant provides:

* 20-Year Letter
* U.S. Army Human Resources Command (HRC) letter, dated 9 December 2013, to the applicant's Member of Congress
* letter from Dr. M____ T. S____, showing the applicant's cancer diagnosis, dated 8 January 2014
* Member of Congress letter, dated 21 January 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 May 1955.  

2.  The FSM was appointed as a second lieutenant (2LT)/0-1, U.S. Army Reserve (USAR), Engineer on 7 June 1977.  He served continuously and attained the rank of lieutenant colonel (LTC)/0-5.

3.  On 7 July 2000, the USAR Personnel Command, St. Louis, MO, issued the applicant a 20-year letter.  This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application.  This letter further informed him that he was entitled to participate in the RCSBP and: 

By law, you have only 90 calendar days from the date you receive this memo to submit your DD Form 1883, Survivor Benefit Plan Election Certificate.  If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60.  If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits.  Enclosed is        DD Form 1883 and detailed information about RC-SBP.

4.  The 9 December 2013 HRC letter informs the applicant's Member of Congress that, by law, the applicant had 90 days to submit an RCSBP election certificate and that if the election certificate was not made within the required 
90 days he would not be entitled to RCSBP coverage.  According to their records the applicant did not make an election.  He was advised of his option to appeal their decision to the Army Board for Correction of Military Records (ABCMR).

5.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve component Soldiers.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

6.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* Option A - elect to decline enrollment and choose at age 60 whether to start RCSBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

7.  At the time, 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 have waited until he/she applied for retired pay and elected to participate in the standard SBP.  This was changed with 20-year letters received after 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve component Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law at the time required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt in order to provide coverage to an eligible dependent.  In the absence of such an election Soldiers had to wait until they reach age 60 to elect coverage.  The applicant acknowledges he did not make the RCSBP election at that time.

2.  The applicant’s 20-year letter clearly informed him of that requirement.  If the applicant had not received the “detailed information about RC-SBP” that should have been enclosed with the letter he had a responsibility to exercise due diligence to contact the office issuing the letter to obtain that information.

3.  The applicant's honorable service and his sincerity with regard to the valuable support his spouse provided him throughout his career are not in question.  However, the decision to participate or not to participate in the RCSBP/SBP is a personal decision made by the Soldier and/or his family.  Notwithstanding his confusion or the absence of a personnel specialist, when the applicant received his 20-year letter he was advised of the consequences of not making an election within 90 days by the plain language of the letter itself.  Accordingly, there is no evidence of Government error. 

4.  Regrettably, there is no provision in the law to allow him to enroll in the RCSBP at this time.  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)                                         AR20130005953



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ABCMR Record of Proceedings (cont)                                         AR20140001210



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