IN THE CASE OF:	  

		BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140004601 


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, the records of her deceased husband, a former service member (FSM), be corrected to show he elected enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) upon receipt of his 20-year letter, and payment of the annuity based on his death.

2.  The applicant states:

* the FSM never received a DD Form 1883 (SBP Election Certificate) to sign; it is a hardship to survive without him 
* she and the FSM were married in December 1985 and he always tried to take care of her even after his death
* if he had been aware there were papers to sign and file in order to receive retirement, he would have done so 
* she is recovering from a stroke and cannot work; she has filed for disability but her case will be delayed for 1-2 years awaiting a hearing date

3.  The applicant provides a:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* SGLV Form 8286 (Servicemembers' Group Life Insurance and Certificate)
* NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement)
* Social security card
* FSM's death certificate
* Her certificate of marriage

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he was born on 15 January 1959.  He and Linda, the applicant, were married on 28 December 1985. 

2.  Having had prior service, the FSM enlisted in the Florida ARNG on 14 August 1990.  He served through multiple extensions in a variety of assignments and he held the rank/grade of staff sergeant (SSG)/E-6.  

3.  On 12 March 2000, the FLARNG issued the FSM orders honorably discharging him from the ARNG and transferring him to the Retired Reserve effective 1 April 2000.  His ARNG Form 23B shows he completed 20 years, 4 months, and 
10 days of qualifying service toward non-regular retirement. 

4.  On 18 April 2000, the FLARNG issued the FSM his 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.  A DD Form 1883 is listed among the enclosures. This letter further informed him:

Attention is invited to the instructions for completion of the SBP Election Certificate (DD Form 1883).  Particular attention is invited to the requirements for both the Soldier and spouse to sign and date the acknowledgement on the reverse side of the DD Form 1883.  It is imperative that the election of options be made in a timely manner and returned to this headquarters no later than 60 days after receipt of the DD Form 1883.  Failure to meet the suspense date (17 June 2000) can result in a loss of benefits to the surviving spouse, in accordance with Army Regulation 135-180 (Qualifying Service for Retired Pay - Non-Regular Service). 

5.  There is no indication the FSM made an election within the suspense date.  Furthermore, his pay records at the Defense Finance and Accounting Service (DFAS) do not contain an SBP Election Certificate. 

6.  The record copy of the 20-Year Letter contains the notation "Never received 1883, 1-30-01" along with the initials "PT" which appears to be the point of contact on the letter.

7.  The FSM died on 7 June 2008.  He was 49 years of age at the time.  His death certificate listed him as married and the applicant's name as his spouse. 

8.  On 22 August 2013, the applicant corresponded with a Member of Congress regarding her entitlement to the military retired pay of the FSM. 

9.  On 10 September 2013, an official at DFAS notified the Member of Congress that upon review, the FSM is not listed on the DFAS military retiree rolls and is not in receipt of military retired pay.  DFAS records reflect he was listed as an Army Reserve future retiree and his records are handled by the branch of service; therefore, DFAS determined that her (the applicant's) request for entitlements falls under the purview of the Department of the Army.  An inquiry was forwarded to the Department of the Army in that regards. 

10.  Subsequent to receiving the inquiry, an official at the U.S. Army Human Resources Command notified the applicant that by law, the FSM had 90 days from the date he received his 20-year letter to submit an SBP Election Certificate (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. 

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 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

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.  

2.  Despite the clear language on the 20-year letter regarding the importance of the SBP election, the FSM's records do not indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.  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.

3.  The FSM, by not responding to his 20-year letter, effectively deferred his RCSBP/SBP 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.

4.  The law is clear.  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, the FSM did not make 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)                                         AR20140004601



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004601



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1