IN THE CASE OF:	   

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140015889 


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, F____M____ D____, the widow of a former service member (FSM), requests correction of his records to show her as the eligible Reserve Component Survivor Benefit Plan (RCSBP) beneficiary.

2.  The applicant states:

* the FSM was not properly counseled at the time he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) and he made no election for survivor benefits
* the FSM died suddenly at age 48; he never reached age 60
* the FSM most likely believed he had until age 60 to complete the final paperwork to receive retirement benefits

3.  The applicant provides:

* Congressional correspondence
* death certificate
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Honorable Discharge Certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 20-year letter
* Army National Guard (ARNG) Current Annual Statement
* ARNG Retirement Points Statement Supplemental Detailed Report
* Ohio ARNG fax cover page
* Social Security Administration letter, dated 28 August 2012
* Social Security Administration Retirement, Survivors, and Disability Insurance Notice of Award
* three marriage licenses
* three divorce decrees

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 12 May 1965.

2.  On 27 March 1987, the FSM married L____ M____ D____ and they divorced on 11 September 1992.

3.  After having prior honorable enlisted service in the U.S. Marine Corps, U.S. Army Reserve (USAR), and U.S. Air Force Reserve, the FSM enlisted in the Louisiana ARNG on 4 October 1995.

4.  On 3 October 1996, the FSM was honorably discharged.

4.  On 14 April 2001, the FSM married S____ S____ D____.

5.  On 16 May 2005, the FSM enlisted in the Ohio ARNG.

6.  On 1 March 2006, the FSM received his 20-year letter.

7.  On 9 May 2006, the FSM completed a DD Form 2656-5 (RCSPB Election Certificate).  This form shows:

* he had no children
* he elected Option A – declined to make an election until age 60
* he was married to S____ S____ D____ and she concurred with his election
* a notary witnessed their signatures

8.  His DD Form 2656-5 also shows:

	a.  in the instructions, "A decision to decline coverage means you will not have another opportunity to select coverage until age 60.  In the event you die prior to your 60th birthday, no survivor benefits will be paid."

	b.  in Section X (Spouse Concurrence), "NOTE:  If the member selects Option A (declining to make an election until age 60), and the spouse concurs, no annuity will be payable if the member dies prior to reaching age 60."

9.  On 26 February 2008, the FSM divorced S____ S____ D____.

10.  On 29 July 2011, the FSM married F____M____ D____, the applicant.

11.  On 30 December 2013, the FSM submitted his request for retirement from the Ohio ARNG.  His request was approved on 11 January 2014.

12.  Ohio ARNG Orders 027-917, dated 27 January 2014, discharged the FSM from the ARNG and transferred him to the Retired Reserve effective 12 April 2014.

13.  On 6 April 2014, the FSM died.  He would not have been eligible to apply for and receive retired pay until 2025.

14.  The applicant provided Congressional correspondence, extracts of the FSM's military records, and a copy of her divorce decree from G____ L. J____.  She also provided copies of her Social Security Administration disability award letter that shows she has been ruled as disabled under Social Security Administration criteria.

15.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

16.  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, Reserve Component Soldiers who complete 20 or more years of qualifying service for Non-regular retirement are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The evidence of record confirms the FSM chose Option A, electing to decline enrollment and choose at age 60 whether to start SBP participation, and his spouse at that time, S____ S____ D____, concurred.

2.  The FSM and S____ S____ D____ divorced and he later married the applicant, F____M____ D____.

3.  Regrettably, the FSM did not live to age 60.  His DD Form 2656-5 shows he and his spouse at the time he elected Option A acknowledged that no annuity would be payable if he died prior to reaching age 60.

3.  In view of the foregoing evidence, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20140015889



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ABCMR Record of Proceedings (cont)                                         AR20140015889



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