IN THE CASE OF:  	  

		BOARD DATE:  28 October 2014	  

		DOCKET NUMBER:  AR20140003941 


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, in effect, payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).

2.  The applicant states:

* her husband had 35 years of active and Reserve military service before he died; he received his twenty-year letter in 1999 and completed the 
DD Form 1883 (SBP Election Certificate)
* after his death, she was informed that the DD Form 1883 was not on file and that she was not entitled to the SBP annuity 
* she remembers when her husband received a packet from the Army with documents, he completed and returned the forms in 1999
* unfortunately, she does not have a copy of the DD Form 1883; the Army is a large organization and she can understand how a form could be misplaced
* her husband's wishes should be honored by the Army because he served his country for 35 years and did his part in completing the forms

3.  The applicant provides a:

* Denial letter from the U.S. Army Human Resources Command (HRC)
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* Twenty-Year Letter
* Marriage License
* Certificate of Death
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2656-7 (Verification of Survivor Annuity)

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he was born in December 1959.  He and Annie, the applicant, were married on 14 August 1987. 

2.  Having had prior service, the FSM enlisted in the U.S. Army Reserve (USAR) on 3 July 1997.  He served through multiple reenlistments or extensions in a variety of assignments and he held the rank/grade of first sergeant (1SG)/E-8. 

3.  On 25 March 1999, the USAR Command issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (Twenty-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:

You are entitled to participate in the RCSBP established by Public Law 95-397.  This plan enables you to provide an annuity for your spouse, and other eligible beneficiaries.  By law, you have only 90 calendar days from the date you receive this memo to submit your DD Form 1883, SBP 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 you die before age 60, your survivor will not be entitled to benefits.  Enclosed is a DD Form 1883 and detailed information about RCSBP. 

4.  There is no indication the applicant made an election within 90 days.  Furthermore, officials at the Defense Finance and Accounting Service (DFAS) confirmed by email, dated 3 July 2014, that no DD Form 1883 is on file at DFAS. 

5.  The FSM entered active duty on 25 February 2003 and he was honorably released from active duty on 22 August 2006.  He continued to be a member of the Selected Reserve, serving with 3rd Battalion, 321st Regiment, Winterville, NC. 

6.  The FSM died on 7 September 2013.  He was 53 years of age at the time.  His death certificate listed him as married and the applicant's name as his spouse. 


7.  His ARPC Form 249-E shows he completed 35 qualifying years of service toward non-regular retirement. 

8.  On 21 October 2013, the applicant submitted a DD Form 2656-7 as the surviving spouse claiming the SBP annuity. 

9.  20 November 2013, by letter, HRC responded to the applicant and stated by law, the FSM had 90 days from the date he received his 20-year letter to submit DD Form 1883.  If an election was not made within 90 days, she would not be entitled to SBP coverage until he applied for retired pay at age 60.  Since the FSM never made an election and never applied for retired pay, she would not be entitled to the SBP. 

10.  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 SBP 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 30 October 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.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, 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 within 
90 calendar days of receipt.  The FSM's records do not indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.  

2.  The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the applicant was not required.  Additionally, since he chose to defer his election to age 60, but died before reaching age 60, there was no coverage at the time of death.

3.  Enrollment in and disenrollment from the RCSBP/SBP are personal decisions made by the Soldier.  The FSM knew the implications of not making an election within 90 days of receiving his 20-year letter because the letter told him so.  The 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/she applied for retired pay and elected to participate in the standard SBP.  Regretfully, there is insufficient evidence to show the FSM made an RCSBP election and he died prior to reaching age 60.  The applicant does not qualify for the SBP annuity.  

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)                                         AR20140003941



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ABCMR Record of Proceedings (cont)                                         AR20140003941



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