BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013055 


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:

* she should be entitled to her late husband's military retirement and she has been trying to get help with this for 6 years 
* the FSM served his country for 21 years and she believes she should receive his retirement benefits 

3.  The applicant provides a:

* Retired Reserve orders 
* DD Form 214 (Report of Separation from Active Duty)
* Certificate of Death
* Certificate of Live Birth

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's record shows he was born in February 1956.  He and Janie were married on 12 November 1976 and divorced on an unknown date.  They had one dependent child, born in December 1977.

3.  Having had prior service, the FSM enlisted in the U.S. Army Reserve (USAR) on 14 January 1978.  He served through multiple reenlistments or extensions in a variety of assignments and he held the rank/grade of staff sergeant (SSG)/E-6. 

4.  The FSM married Tina, the applicant, on 12 August 1989. 

5.  On 24 March 1995, the USAR Personnel Center 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 Reserve Component Survivor Benefit Plan (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.  

6.  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 26 August 2014, that no SBP election is on file at DFAS. 

7.  On 29 October 1995, Headquarters, 124th Regional Support Command, Fort Lawton, WA, published orders transferring the FSM to the Retired Reserve effective 5 August 1995. 

8.  The FSM died on 9 September 2004.  He was 48 years of age at the time.  His death certificate shows he was married and the applicant's name is listed as his spouse. 

9.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component 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

10.  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 in March 1995.  

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)                                         AR20140013055



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ABCMR Record of Proceedings (cont)                                         AR20140013055



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