IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20140011389 


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 correction of his records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP), option C (Immediate Annuity), within 90 days of receiving his 20-year letter.

2.  The applicant states his 20-year letter was dated 12 October 2000.  The RCSBP was in a state of transition at the time.  The law changed on 1 January 2001.  The new law stated married members who did not submit their elections within 90 days of receiving their 20-year letter were automatically enrolled in the RCSBP for spouse coverage.  The guidance that was passed to the unit administrators at the time was that if the 90-day window passed 1 January 2001, a form was not needed to be sent in selecting the accept option as it was selected by default.  When he was informed of this, he did not submit a form electing to enroll.

3.  The applicant provides:

* statement from an oncologist, dated 16 April 2015 (should read 2014)
* statement from the unit administrator, dated 23 May 2014
* undated/un-witnessed DD Form 2656-5 (RCSBP Election Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in August 1960.  He will turn 60 years of age in August 2020.

2.  Having prior enlisted service, he was appointed as a Reserve commissioned officer of the Army National Guard (ARNG) and executed an oath of office on 8 September 1984.  He served in a variety of stateside and overseas assignments in various State ARNG's and the U.S. Army Reserve.

3.  On 12 October 2000, the U.S. Army Reserve Personnel Command, St. Louis, issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) to the applicant.  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 Reserve Component Survivor Benefit Plan (RC-SBP) 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, Survivor Benefit Plan-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 RC-SBP.

4.  There is no indication the applicant made an election within 90 days.  

5.  The applicant continues to be a member of the Selected Reserve, serving with Headquarters and Headquarters Company, 311th Signal Command, Costa Mesa, CA.

6.  The applicant provided the following documents in support of his request:

	a.  A medical statement from an oncologist, dated 16 April 2015 (should read 2014), states the applicant asked him to write this statement in support of the applicant's Department of Veterans Affairs claim.  He has been treating the applicant for metastatic renal cancer carcinoma.  The applicant is terminally ill and his claim should be expedited.

	b.  A statement from the former unit administrator (now a retired first sergeant), dated 23 May 2014, states that at the time the applicant received his 20-year letter personnel staff were informed that automatic election of the SBP would be option C for married Soldiers as of 1 January 2001.  The 2001 National Defense Authorization Act did make the change.  Since the applicant's 90-day window did not end until late January 2001, it was assumed he would fall under the new law.  Therefore, he was advised that he did not have to submit a DD Form 1883.  As a result, he did not submit one.  Unfortunately, the confusion over the dates led to the situation he is in now.  Additionally, Public Law 92-425 and Public Law 95-397 require the spouse of a married Soldier to be informed if option A (Decline Coverage) is elected.  The applicant's spouse was never informed.

	c.  A DD Form 2656-5 signed by the applicant is neither dated nor witnessed. 
According to this DD Form 2656-5, he and his spouse were married on 18 July 1989 and they have three sons (triplets) born in 2002 and a daughter born in 2000.

7.  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 are 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 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

8.  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.  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, 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 applicant's records show he was issued a 
20-year letter on 12 October 2000 but do not indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.

2.  By not responding to his 20-year letter notification of RCSBP eligibility, the applicant effectively deferred his election to age 60.  As this was a deferral opposed to an affirmative election to decline full spouse coverage, notice to his spouse was not required.  Additionally, since he chose to defer his election to age 60 but has not yet reached age 60, there is no coverage at this time.

3.  Public Law 106-398, enacted on 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.  The applicant's 20-year letter was issued before 1 January 2001.

4.  Notwithstanding the above, the applicant has submitted independent evidence that he was improperly advised that full immediate RCSBP coverage would be automatic because his 90-day window closed after the effective date of the statute making such coverage automatic in the absence of an election.

5.  The applicant relied on that mistaken advice.  Accordingly, it is in the best interest to grant relief and correct his records to show he elected full, immediate spouse and child coverage under the RCSBP.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:









* showing the applicant made an RCSBP election on 1 November 2000
* showing he elected spouse and children coverage under option C, based on the full amount 
* showing DFAS timely received and accepted his RCSBP election



      _____________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)                                         AR20140011389



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ABCMR Record of Proceedings (cont)                                         AR20140011389



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