BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140004712 


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, correction of her husband's military records to show he made a Reserve Component Survivor Benefit Plan (RCSBP) election for immediate spousal coverage.  He is a deceased former service member (FSM).  She further requests payment of the RCSBP annuity based on his death.

2.  The applicant states she believes the FSM made an election for spousal coverage while attached to a unit in Joliet, Illinois.  She does not know if it was lost or it just cannot be found.  She did not sign for any other election.  The FSM received his packet days before he died.  He filled out part of it but there was no time to have a notary witness his signature.

3.  The applicant provides copies of:

* DD Form 214 (Report of Separation from Active Duty) for the period        17 July 1974 to 14 July 1978
* Marriage License for the FSM and applicant, dated 8 July 1989
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 16 September 1996
* Memorandum, U.S. Army Reserve (USAR) Personnel Command, subject: Expiration Term of Service (ETS), dated 16 May 1998
* U.S. Army Human Resources Command (HRC) Form 249 (Chronological Statement of Retirement Points), dated 5 September 2013
* DD Form 2656 (Data For Payment of Retired Personnel), partially completed, unsigned, undated
* FSM's Death Certificate, issued on 4 October 2013
* Letter, HRC, RC Retirements, dated 27 November 2013
* DD Form 2656-7 (Verification for Survivor Annuity), dated 6 December 2013
* Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 6 December 2013
* Standard Form 1199A (Direct Deposit Sign-Up Form), partially completed, unsigned, undated
* ARPC Form 249-E (Chronological Statement of Retirement Points), dated 6 January 2014
* Standard Form 180 (Request Pertaining to Military Records), dated 
9 January 2014
* Letter from HRC to the applicant, dated 15 January 2014
* FSM's Social Security Card

CONSIDERATION OF EVIDENCE:

1.  The FSM was born in October 1954.  He enlisted in the Regular Army on
17 July 1974.  On 14 July 1978, he was honorably released from active duty and transferred to the USAR for duty in a Troop Program Unit.  He served in the USAR through multiple reenlistments or extensions and attained the rank/grade of sergeant first class (SFC)/E-7.

2.  He and the applicant were married on 8 July 1989.

3.  On 16 September 1996, the USAR Personnel Center issued the FSM a 
20-Year Letter.  This letter notified him that he had completed the required years of service to be eligible for retired pay at age 60, upon application.  This letter further informed him that:

	a.  he was entitled to participate in the RCSBP, as established by Public Law 95-397;

	b.  RCSBP enabled him to provide an annuity for his spouse and other eligible beneficiaries;

	c.  he had, by law, only 90 calendar days from the date he received this notice to submit a DD Form 1883;

	d.  if he did not submit an election within 90 calendar days, he would not be entitled to SBP coverage until he applied for retired pay at age 60; and

	e.  If he did not elect coverage and should die before reaching age 60, his survivor(s) would not be entitled to benefits.
4.  There is no indication the FSM made an RCSBP election within the 
90-calendar day period.

5.  The FSM's AHRC Form 249, dated 5 September 2013, indicates he was transferred to the Retired Reserve on 16 September 1998.  It also shows that he completed 22 qualifying years of service towards a non-regular retirement.

6.  The FSM died on 2 October 2013, at age 58.  His death certificate shows he was married to the applicant.

7.  On or about 6 December 2013, the applicant submitted a DD Form 2656-7 with enclosures claiming an SBP annuity as the surviving spouse.

8.  On 15 January 2014, HRC responded by letter to the applicant stating that by law, the FSM had 90 calendar days from the date he received his 20-year letter to submit a DD Form 1883.  If an election was not made within 90 days, he would not be entitled to SBP coverage until he applied for retired pay at age 60.  Because the FSM never made an election and never applied for retired pay, she was not entitled to an SBP annuity.

9.  Public Law 95-397, enacted 30 September 1978, provided a way for RC Soldiers 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:

	a.  Option A:  elect to decline enrollment and choose at age 60 whether to start SBP participation;

	b.  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; or

	c.  Option C:  elect that a beneficiary receive an annuity immediately upon their death if before age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the FSM's military records should be corrected to show he made an RCSBP election for immediate spousal coverage.  She further requests payment of the RCSBP annuity based on his death.

2.  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 within that 90-day period to participate in the RCSBP.

3.  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, because he chose to defer his election to age 60, but died before reaching age 60, there was no coverage at the time of his death.

4.  Enrollment in and disenrollment from the RCSBP 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 applying for retired pay and elect to participate in the standard SBP.  Regretfully, the FSM did not make an RCSBP election and he died prior to reaching age 60.  Accordingly, the applicant does not qualify for a survivor 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)                                         AR20140004712



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