IN THE CASE OF:
BOARD DATE: 6 November 2014
DOCKET NUMBER: AR20140002919
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 an earlier request to correct the FSM's records to show she is entitled to Survivor Benefit Plan (SBP) benefits.
2. The applicant states:
a. She requests award of her husband's retirement (Reserve Component SBP (RCSBP)).
b. Under Public Law 95-397, section 202(a)(3)(B), it states, "If a person who is eligible under paragraph (1)(B) to participate in the Plan and who is married does not elect to participate in the Plan at the maximum level, or elects to provide an annuity for a dependent child but not for his spouse, that person's spouse shall be notified of that action."
c. She was never notified of her husband's failure to participate in the plan. Therefore, her rights were violated and she was prejudiced.
3. The applicant provides a copy of Public Law 95-397.
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 AR20130000228 on 17 September 2013.
2. The applicant's argument that her rights were violated and she was prejudiced because she was never notified of her husband's failure to participate in the RCSBP is new evidence that will be considered by the Board.
3. Having prior active service in the Regular Army from 1 July 1975 to 30 June 1978, the FSM was transferred to the U.S. Army Reserve (USAR) on 1 July 1978.
4. The marriage certificate provided by the applicant shows she and the FSM were married on 30 July 1992.
5. On 22 October 1998, he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). Paragraph 4 of this memorandum pertains to the RCSBP and the DD Form 1883 (SBP Election Certificate) and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. This form also states, "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."
6. There is no record evidence showing the FSM made an RCSBP election.
7. Headquarters, 99th Regional Support Command, Orders 03-198-00101, dated 17 July 2003, show the FSM was honorably separated from the USAR on 30 June 2003 and transferred to the Retired Reserve effective 1 July 2003.
8. The FSM's chronological statement of retirement points shows he completed 23 years, 11 months, and 28 days of service for retired pay purposes.
9. On 29 June 2008, the FSM died at age 56. The death certificate shows he was married to the applicant at the time.
10. 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.
11. 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; or
c. elect that a beneficiary receive an annuity immediately upon their death if before age 60.
12. Before the law was amended in October 2000, 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 or she applied for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of option A to decline enrollment and choose at age 60 whether to elect SBP participation.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM failed to make an RCSBP election within the required 90-day time frame in 1998/1999.
2. The applicant contends her rights were violated under Public Law 397, section 202(a)(3)(B), because she was never notified of her husband's failure to participate in the SBP.
3. The law cited by the applicant applies to individuals who do not elect to participate in the SBP at the maximum level (such as a reduced amount) or elect to provide an annuity for a dependent child, but not for his spouse. In this case, the FSM did not make an RCSBP election thereby deferring whether to elect SBP participation at age 60. At the time of his death he was not yet entitled to elect SBP coverage.
4. The law required the RCSBP election to be made within 90 days of receiving the 20-year letter or the opportunity to elect coverage was deferred until age 60.
5. Regrettably, since there is no evidence showing the FSM completed the DD Form 1883 in the required time frame, there is no basis in equity for 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130000228, dated 17 September 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) AR20140002919
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ABCMR Record of Proceedings (cont) AR20140002919
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