IN THE CASE OF:	

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20140017157 


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 Reserve Component Survivor Benefit Plan (RCSBP) annuity based on the death of her husband, a former service member (FSM).

2.  The applicant states:

* her husband died before his 60th birthday and the U.S. Army Human Resources Command said she is not entitled to his pension
* she feels this is unfair because he served over 20 years in the U.S. Army Reserve (USAR)

3.  The applicant provides:

* letter from the U.S. Army Human Resources Command
* FSM's death certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 6 September 1953.  He enlisted in the USAR on 16 June 1971.  He and the applicant were married on 1 April 1972. 
He served continuously through a series of reenlistments.

2.  On 15 July 1992, the USAR Personnel Center, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum 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 memorandum further informed him of his eligibility to participate in the RCSBP to provide an annuity for his spouse and other eligible beneficiaries.  The memorandum stated, in part:

BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD FORM 1883).  IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ALLOWED TO OBTAIN SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60.  IF YOU DO NOT ELECT COVERAGE AND SHOULD DIE BEFORE AGE 60, THERE WILL BE NO BENEFITS FOR YOUR SURVIVORS.

3.  His records contain a DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 28 September 1992, showing action was initiated to transfer him to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), chapter 6 (Transfer to and from the Retired Reserve), based on completion of 20 years of satisfactory service.

4.  Headquarters, 157th Infantry Brigade (Separate), Orders 79-18, dated 29 September 1992, transferred him to the Retired Reserve effective 29 September 1992.

5.  The FSM's records contain a DD Form 1883 (SBP Election Certificate), dated 1 November 1992, wherein he indicated he was married to the applicant and they had dependent children.  He elected spouse-only coverage based on the full amount of retired pay under Option B (Age 60).  He and the applicant authenticated this form with their signatures.  Option B indicates:

I ELECT TO PROVIDE AN ANNUITY BEGINNING ON THE 60TH ANNIVERSARY OF MY BIRTH SHOULD I DIE BEFORE THAT DATE, OR ON THE DAY AFTER DATE OF DEATH SHOULD I DIE ON OR AFTER MY 60TH BIRTHDAY.

6.  The FSM died on 23 April 2012 at 58 years of age.  His death certificate shows the applicant as his surviving spouse.

7.  On 26 November 2013, the U.S. Army Human Resources Command informed the applicant that she was not entitled to the SBP annuity.  By law, the FSM had 90 days from the date he received his notification of eligibility for retired pay to submit an SBP election.  If an election was not made within the required 90-pay period, he would not be entitled to elect SBP coverage until he applied for retired pay at age 60.  According to the FSM's records, he was issued his 20-year letter on 15 July 1992, but he failed to make an election until 1 November 1992.  Therefore, the applicant was not entitled to an SBP annuity.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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.  Once a member elects either option B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP and RCSBP coverage automatically converts to SBP coverage upon retirement.

9.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to delay making an RCSBP election until age 60.  In other words, failure to elect an option within 90 days results in the default election of Option C.  A 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 or her 20-year letter.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, a Reserve service member who completes 20 or more years of qualifying service for Reserve retired pay is issued a 20-year letter that informs the member of his or her retirement eligibility and offers the opportunity to enroll in the RCSBP.  The law in effect at the time required the service member to make an election and return the enrollment form within 90 calendar days of receipt of the 20-year letter.

2.  The FSM's records show his 20-year letter was issued on 15 July 1992 and he completed a DD Form 1883 on 1 November 1992 wherein he elected spouse-only coverage under Option B (Age 60).

3.  On 26 November 2013, the U.S. Army Human Resources Command notified the applicant that the FSM's DD Form 1883 was invalid because he did not make an election within 90 calendar days of receipt of his 20-year letter.

4.  It is accepted as fact that the FSM did not receive his 20-year letter on the same date it was issued.  It is more likely than not that he did not receive the letter until early August 1992 and responded within 90 calendar days of receipt as instructed.  Equally important, his SBP Election Certificate is filed in his service records.  If the U.S. Army did not accept his SBP election, he should have been notified in a timely manner and his records should have been so documented.  In the interests of equity and justice, any doubt should be resolved in the applicant's favor.

5.  It would be appropriate to correct the FSM's records to show the DD Form 1883 he submitted was received by the U.S. Army Human Resources Command within 90 calendar days of receipt of his 20-year letter.  It would also be appropriate to pay the applicant the SBP annuity effective 6 September 2013, the 60th anniversary of the FSM's birth, under the terms of the FSM's SBP Election Certificate.

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 FSM completed a DD Form 1883 electing Option B, spouse coverage, based on the full amount within 90 calendar days of receiving his 20-year letter
* showing DFAS timely received and processed the FSM's DD Form 1883
* paying the applicant the SBP annuity effective 6 September 2013, the 60th anniversary of the FSM's birth


      ____________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)                                         AR20140017157



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ABCMR Record of Proceedings (cont)                                         AR20140017157



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