IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20140003735 


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 correction of his records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) and payment of the SBP annuity based on the FSM's death.

2.  The applicant states at the time her husband received his 20-year letter, neither one of them was properly briefed on the SBP.  They signed the form without thorough knowledge of the program and not realizing that their decision is irrevocable.  They were ill-advised. 

3.  The applicant provides:

* Certificate of Marriage
* Certificate of Death
* DD Form 2656-7 (Verification for Survivor Annuity)
* Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)
* letter from the U.S. Army Human Resources Command (HRC)
* letter from the Social Security Administration
* Standard Form (SF) 1199A (Direct Deposit Sign-Up Form)
* Form W-4P (Withholding Certificate for Pension or Annuity Payment) 





CONSIDERATION OF EVIDENCE:

1.  The applicant's request (ABCMR Docket Number AR20130010420) was previously administratively closed on 25 February 2013. 

	a.  A staff member of the Board was initially advised by an HRC official that since no RCSBP election was made by the FSM within 90 days of receiving the 20-Year Letter, the FSM's RCSBP coverage defaulted to spouse coverage.  The HRC official also advised that their office would correct the record to show the FSM enrolled in the SBP for spouse coverage and forward it to DFAS for processing and establishment of the SBP annuity for the applicant. 

	b.  However, after administratively closing the applicant's case, the same HRC official notified a staff member of the Board that since the FSM had died more than 6 years ago (19 January 2007) their office could not make the change because it violates the barring statute.  

2.  The FSM was born on 14 May 1953.  He and Harriet, the applicant, were married on 22 August 1975.  The FSM previously served in an enlisted status.

3.  He was appointed as a Reserve commissioned officer of the New York Army National Guard and executed an oath of office on 17 August 1979.  He served in a variety of staff or command assignments and he attained the rank of captain.  

4.  On 10 September 2003, the U.S. Army Reserve Personnel Command, St. Louis, MO, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (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 of his eligibility for enrollment in the RCSBP and the options available to him.

5.  There is no indication in the FSM's records to show he made an RCSBP election within 90 days of his 20-Year Letter.   

6.  On 16 March 2004, 6 months after the 20-Year Letter was issued, the FSM completed a DD Form 2656-5 (RCSBP Election Certificate).  He indicated he was married to Harriet and they had two dependent children.  He checked Option A (I decline to make an election until Age 60).  His spouse, Harriet, the applicant, concurred with this election by placing her signature in the appropriate block.


	a.  Section X (Spouse Concurrence) states (in part) "If the member selects Option A (declining to make an election until age 60), and the spouse concurs, no annuity will be payable if the member dies prior to reaching age 60."

	b.  Item 21 (Spouse) states "I hereby concur in my spouse's RCSBP election as indicated.  I have read and understand the information that explains the options available and the effects of these options.  I am aware that my signature constitutes concurrence and that I may not change my mind at a later date regarding the RCSBP election." 

7.  On 14 December 2004, the FSM was transferred to the Retired Reserve.  He had completed 22 years, 9 months, and 3 days of qualifying service toward non-regular retirement. 

8.  On 19 January 2007, the FSM died.  He was 53 years of age.  His death certificate shows he was married to Harriet at the time of death. 

9.  On 11 April 2013, the applicant submitted to HRC a DD Form 2656-7 claiming the SBP annuity based on the death of her husband.  She submitted an SF 1199A, Form W-4P, the FSM's Certificate of Death, and a DD Form 2656-7.

10.  On 23 April 2013, HRC denied her request.  An official notified her that the FSM elected not to participate in the RCSBP and to make the election valid, the spouse had to concur with this election, which she did.  Therefore, by law, she was ineligible for the SBP.  

11.  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

12.  Public Law 106-398, enacted October 30, 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP 

election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.  The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-Year Letter.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, RC 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 in effect at the time required the Soldier to make an election and return the enrollment form.  The FSM's records do not show he made an election within 90 days of receiving his 20-Year Letter.  As a result, by law, his coverage would have defaulted to spouse coverage.  

2.  For unknown reasons, 6 months after the 20-Year Letter was issued the FSM made an RCSBP election and elected Option A (I decline to make an election until Age 60).  His spouse, Harriet, the applicant, concurred with this election by placing her signature in the appropriate block.  This election was invalid since it was not made within 90 days of receiving his 20-Year Letter. 

3.  The FSM died on 19 January 2007.  His death certificate shows he was married to Harriet at the time of death.  Since by law his RCSBP coverage defaulted to spouse coverage and since the applicant was his spouse at the time of death (now his widow), she is entitled to the SBP annuity based on his death. 

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:

* removing the invalid DD Form 2656-5, dated 16 March 2004, from the FSM's records
* showing his RCSBP coverage defaulted to spouse coverage
* showing the applicant made a timely request for the SBP annuity
* paying to the applicant the SBP annuity effective 20 January 2007, the date after the FSM’s death



      _______ _   _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)                                         AR20140003735





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ABCMR Record of Proceedings (cont)                                         AR20140003735



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