BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140017234 


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, the widow of a deceased former service member (FSM), requests correction of his records to add the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage to his records.  In effect, she requests entitlement to RCSBP benefits based on the death of her husband, the FSM.

2.  The applicant states her husband passed away before making an SBP election.  He passed away during the 90-day window for SBP election.  He did not have the opportunity to make the election. 

3.  The applicant provides his death certificate and a letter from the U.S. Army Human Resources Command (HRC).

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 2 April 1955.

2.  The FSM enlisted in the Hawaii Army National Guard (HIARNG) on 5 June 1974 and he held military occupational specialty (MOS) 62E (Crawl Tractor Operator).  

3.  He served in a variety of positions with the 227th Engineer Company of the HIARNG.  He was honorably separated from the ARNG on 4 June 1980.  He completed 6 years of ARNG service, including 4 months and 29 days of active duty. 

4.  The FSM enlisted in the HIARNG for 1 year on 30 October 1981.  He and Rowena, the applicant, were married on 26 May 1983.  He was trained in and held MOS 92G (Food Service Specialist). 

5.  He served through multiple extensions or reenlistments, the last of which was for a 6-year term, executed on 4 August 1994, serving mainly with the 2nd Battalion, 299th Infantry, HIARNG.  

6.  On 25 January 1996, HIARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

7.  There is no evidence in the FSM's records that indicates he elected to participate in the RCSBP during his 90-day window of opportunity.  Additionally, there is no evidence in the available record that shows the ARNG notified the applicant that the FSM either declined coverage or did not make an election, as it was not required by law.

8.  The FSM died as a result of a motorcycle accident on 10 April 1996.  His death certificate shows he was 41 years of age at the time of death and he was married to the applicant. 

9.  It appears at some point, the applicant contacted HRC regarding the RCSBP annuity.  However, on 27 August 2014, by letter, an official at Reserve Component Retirement Branch, HRC, notified the applicant that: 

	a.  The RCSBP was established by law to provide an annuity for the spouse and/or other eligible beneficiaries for Reserve Soldiers or former Soldiers who have completed 20 qualifying years of service for retired pay at age 60.  The FSM had 90 days from the date he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) to submit a DD Form 1883 (SBP Election Certificate).  If the election was not made within 90 calendar days, he would not be entitled to SBP coverage until he applied for retired pay at age 60. 

	b.  HRC has no record of the FSM making an election and according to his death certificate, the FSM died before the 90 calendar days.  HRC cannot make a determination as to whether he was planning to make an election.  The ABCMR is in the better position to make such determination. 


10.  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: 

* elect to decline enrollment and choose at age 60 whether to start SBP participation
* 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
* 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 wait until he/she applied for retired pay and elected to participate in the standard SBP.

11.  Title 10, U.S. Code, section 1448(f)(1)(A)(ii) directs that the Secretary concerned pay an annuity to the surviving spouse of a person eligible to provide an annuity who dies during the 90-day election period.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was issued a 20-year letter on 25 January 1996.  He had completed in excess of 20 qualifying years of service at the time.  Regrettably, he died on 10 April 1996, some 75 days after his letter was issued, which was within the   90-day window to make an SBP election.

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 days of receipt.  The FSM's records do not indicate that he elected to participate in the RCSBP.

3.  The FSM was within his 90-day window to send an SBP election.  It appears he was prevented from doing so by his premature and accidental death.  Given the fact that he had completed at least 20 qualifying years and given the fact that he was married, it is reasonable to presume he would have made an RCSBP election for spouse coverage by the 90th day.  Further, the law provides that an annuity be paid to the surviving spouse in such circumstances. 

4.  Therefore, his records should be corrected to show he submitted a DD Form 1883 (SBP Election Certificate) within 90 days of his 20-year letter and that the Defense Finance and Accounting Service timely received and processed his election.  The applicant is therefore entitled to payment of the SBP annuity retroactive to 11 April 1996, the date after his death. 

BOARD VOTE:

___X_____  ___X_____  _X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 made an RCSBP election (DD Form 1883) for spouse coverage, Option C, based on the full amount, within 90 days of receiving his 20-year letter
* DFAS timely received, accepted, and processed his DD Form 1883
* The applicant is entitled to payment of the SBP annuity retroactive to 11 April 1996 



      ___________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)                                         AR20140017234





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ABCMR Record of Proceedings (cont)                                         AR20140017234



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