IN THE CASE OF:
BOARD DATE: 1 October 2014
DOCKET NUMBER: AR20140001835
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 payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a deceased former service member (FSM).
2. The applicant states she believes her husband intended to cover her as his beneficiary for the SBP. He had previously covered her under the Reserve Component SBP (RCSBP) from 2 July 1997 to 30 September 2001. When he applied for retirement, she believes he was convinced that the SBP was a health insurance program rather than a survivor's annuity. She believes he would have wanted to cover her as his beneficiary if he had been fully aware of what the SBP was.
3. The applicant provides:
* DD Form 1883 (SBP Election Certificate)
* Congressional correspondence
* DD Form 2656 (Data for Payment of Retired Personnel)
* Army National Guard (ARNG) Retirement Points History Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* Marriage certificate
* FSM's death certificate
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 21 November 1953. He and Michelle, the applicant, were married on 22 April 1972.
2. Having had prior service, the FSM enlisted in the Michigan ARNG (MIARNG) on 12 March 1980. He served through multiple extensions in the ARNG.
3. He entered active duty as a member of the ARNG in the Active Guard Reserve (AGR) program on 1 April 1983. He served in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.
4. On 23 April 1997, the MIARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This memorandum notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. Enclosed with this letter was an SBP summary which notified him that he was entitled to participate in the RCSBP.
5. On 2 July 1997, the FSM completed a DD Form 1883, wherein he indicated he was married to Michelle and they had a dependent daughter. This form shows he elected "spouse and children" RCSBP, full coverage under Option C (immediate coverage). The FSM and the applicant each signed this form on 15 December 1993.
6. On 18 June 2004, as he approached 20 years or more of active federal service, and in connection with his upcoming retirement, he submitted a DD Form 2656 in which he stated that he was married to the applicant. In the "Beneficiary Category" block, he placed an "X" in "I elect not to participate in the SBP." He and a witness authenticated this form with their signatures.
7. On 14 July 2004, by separate statement, the applicant concurred with his election not to participate in the SBP. She indicated she understood there would be no survivor coverage for the spouse and/or children. Her signature was witnessed by an official who also placed her signature on the form.
8. He retired from active federal service on 30 September 2004 in the rank/grade of SFC/E-7 by reason of sufficient service based on his more than 20 years of active federal service and was placed on the Retired List on 1 October 2004.
9. The FSM died on 5 December 2011; he was married to the applicant at the time of his death.
10. The applicant provides Congressional correspondence wherein she corresponded with a Member of Congress in an effort to receive the SBP annuity.
11. 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.
12. 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 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.
13. Title 10, section 1447(3) defines the RCSBP as, in effect, an annuity provided by virtue of being eligible for RC retired pay but for the fact the member is under 60 years of age. It provides, in effect, that once Reservists retire under an active duty retirement law they are no longer eligible for RC retired pay or RCSBP. When the retirement is under an active retirement law, the election is no longer based on the RCSBP election and they must make a new, standard SBP election.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms that on 2 July 1997, subsequent to receiving his 20-Year Letter, the FSM elected RCSBP "spouse and children" coverage under Option C (immediate coverage), full base amount.
2. However, as he was retired under an active federal service retirement law, his RCSBP election was no longer valid. On 18 June 2004, as he approached 20 years or more of active federal service, and in connection with his upcoming retirement, he submitted a DD Form 2656 in which he elected not to participate in the SBP." His spouse, the applicant concurred with this election.
3. The decision to enroll or not to enroll in the SBP is a personal decision made by the member and his family. Notwithstanding the applicant's contention, it is reasonable to presume the FSM fully understood the ramifications of the change in his election in 2004 as he held the rank of SFC at the time he retired and he had previously made an RCSBP election.
4. 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) AR20140001835
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ABCMR Record of Proceedings (cont) AR20140001835
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