BOARD DATE:	29 October 2014  

	DOCKET NUMBER:  AR20140003182 


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 widow of a deceased former service member (FSM), requests correction of the FSM's military records to show her as his spouse with eligibility to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states she received a letter from the U.S. Army Human Resources Command (HRC), date stamped 22 February 2013.  It informed her that the FSM had 90 calendar days from the date he received his Notice of Eligibility for Retired Pay at Age 60 (20-Year Letter) to submit a DD Form 1883 (Survivor Benefit Election Certificate).  According to HRC records the FSM did not make an election within the required 90 calendar days.  Therefore, she was not entitled to any benefits.  After pursuing RCSBP for 4 years, she has concluded the FSM’s organization failed him.  There is no record of him receiving his 20-Year Letter.  Because there was never a 20-Year Letter, there could be no DD Form 1883.  The FSM served 20 and 1/2 years in the Kentucky Army National Guard (KYARNG), until December 1989.  He passed away on 31 July 2009, just 9 months before turning 60 years of age.  She remembers those weeks when her husband of 37 years was away serving his duty while she and their three children spent time without him.  He loved his family and willed everything to her and then to their children if she was deceased.  It was very hurtful to receive two identical certificates from President Obama commending him for his service and a letter saying the government would be keeping the money he had earned.  This causes her family and her to feel that perhaps our Soldiers are not really appreciated and are doubtful they will encourage any of their four grandchildren to go into the service.  If she is wrong, and this is just the law, perhaps the law needs to be changed.

3.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Marriage Bond, Register of Marriage, and Record of Marriage Certificate dated 26 June and 1 July 1972
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 8 December 1989
* Orders 235-10, KYARNG, dated 11 December 1989 (first page only)
* Army National Guard (ARNG) Retirement Points History Statement, prepared 19 September 1990
* Information Sheet, HRC, Processing an SBP Claim, printed from the web 26 November 2007
* FSM’s Certificate of Death, issued 4 August 2009
* Standard Form 1199A (Direct Deposit Sign-Up Form), dated 23 December 2009
* DD Form 2656-7 (Verification for Survivor Annuity) dated 18 October 2010
* Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 18 October 2010 (4 pages)
* Letter from HRC, dated 22 February 2013
* Steps Taken to Obtain Survivor’s Annuity (4 pages), dated between         10 August 2009 to 31 January 2014
* Twelve Artifacts to Support Steps Taken 
* Certificate from the Office of the President of the United States (2 copies), undated

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.  The FSM’s ARNG Retirement Points History Statement shows he entered military service on 4 November 1969 as a member of the ARNG.

3.  On 1 July 1972, the applicant and FSM were married.

4.  The FSM's NGB Form 22 shows he served in the KYARNG until 8 December 1989, when he was transferred to the U.S. Army Reserve (no control group listed).  He had completed a total of 20 years, 5 months, and 5 days of creditable service.

5.  The ARNG Retirement Points History Statement shows he had completed 
20 years, 1 month, and 5 days of creditable service for retired pay effective 
8 December 1989.

6.  There is no available evidence showing the FSM was ever issued a 20-Year Letter.  

7.  DFAS has no SBP record of the FSM.

8.  The FSM's Certificate of Death shows he died on 31 July 2009, at age 59.

9.  The letter from HRC, as provided by the applicant, dated 22 February 2013, states the FSM had 90 calendar days from the date he received his 20-Year Letter to submit an SBP election.  The HRC letter does not confirm the FSM actually was ever issued such a letter.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If the member dies before reaching age 60, premiums are deducted from the annuity.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's military records should be corrected to show she is eligible to receive an RCSBP annuity.

2.  The available evidence shows the FSM completed over 20 qualifying years of service and he was eligible for a 20-Year Letter.

3.  There is no available evidence showing the FSM ever received a 20-year letter.  Furthermore, there is no evidence showing that such a letter was ever produced on the FSM’s behalf.  Without such documentation, there was no established 90-day period in which the FSM should have submitted an SBP election.  Accordingly, there is no authorization for the FSM to have received retired pay at age 60.

4.  The FSM died prior to attaining age 60 and eligibility to receive retired pay.  Because he had not made an RCSBP election for immediate coverage under option C, there was no coverage in effect at the time of his death.

5.  There is no available documentation from the FSM’s unit or the NGB stating that he had never been issued a 20-Year Letter, but the available correspondence from HRC failed to address this issue and only stated the obvious, that no 20-Year letter was available and there was no evidence showing the FSM had ever made an SBP election.

6.  The lack of documentary evidence makes it impossible to determine whether the FSM was or was not issued a 20-Year Letter, did or did not receive it, and did or did not desire to submit an SBP election.

7.  In view of the above, and as a matter of equity, the applicant's request should be granted by showing the FSM was issued a 20-Year letter dated 8 December 1989 and that he had made an RCSBP election for immediate coverage for his spouse should he die before reaching age 60.









BOARD VOTE:

___x_____  __x______  _x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 the FSM was issued a 20-Year Letter and made a timely RCSBP election of immediate spouse coverage;

     b.  showing the applicant made a request for an RCSBP annuity in a timely manner and that such request had been approved; and

     c.  paying the applicant an RCSBP annuity effective 1 August 2009.



      __________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)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003182



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1