IN THE CASE OF:	  

	BOARD DATE:	  9 July 2015

	DOCKET NUMBER:  AR20140019078


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 the FSM's military records to show her as his spouse with eligibility to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states she received a late notification of the FSM's RCSBP annuity information.  The FSM was honorably discharged in 2003 due to a medical condition.  The FSM died in 2005.  The applicant contends that she did not receive any notification of the statute of limitations concerning the FSM's RCSBP benefits.

3.  The applicant provides copies of:

* State of Arizona Marriage License/Marriage Certificate, dated 2 February 1988
* Medical Progress Notes, pertaining to the FSM, dated between                  9 December 2003 and 11 January 2005
* Orders 12-1026, California Army National Guard (CAARNG), dated        12 January 2004
* State of Arizona Certificate of Death, dated 18 October 2005
* National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement) prepared 21 May 2014
* Standard Form 1199A (Direct Deposit Sign-Up Form) dated 29 May 2014
* Form W-4P (Withholding Certificate for Pension or Annuity Payments) dated 29 May 2014
* DD Form 2656-7 (Verification for Survivor Annuity) dated 29 May 2014
* Memorandum, CAARNG, subject: Notification of Eligibility for Retired Pay for Non-Regular Service (15 Years), dated 8 September 2014
* Letter, U.S. Army Human Resources Command, dated 10 October 2014

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 ARNG Retirement Points History Statement shows he entered military service on 10 February 1974 as a member of the U.S. Marine Corps Reserve.  He also served as a member of the Naval Reserve before entering the United States Army Reserve (USAR) and ARNG in the late 1980's.

3.  On 2 February 1988, the applicant and FSM were married.

4.  The ARNG Retirement Points History Statement shows he had completed 
16 years, 6 months, and 16 days of creditable service for retired pay effective 
31 December 2003.

5.  Orders 12-1026, CAARNG, dated 12 January 2004, discharged the FSM from the ARNG and transferred him to the Retired Reserve effective 
31 December 2003.

6.  A certificate of death from the State of Arizona, dated 18 October 2005 reports that the FSM died on 10 October 2005 at 51 years of age.

7.  The CAARNG issued a 15-Year Letter, dated 8 September 2014.  It states that the FSM had completed at least 15 years, but less than 20 years of qualifying service and was eligible for retired pay upon reaching 60 years of age.  The letter further explains that the FSM had been found unfit for further duty in the Selected Reserve due to a physical disability.
8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

9.  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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If the member dies before reaching age 60, premiums are deducted from the annuity.

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.

11. Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  It explains that retired pay is pay granted Soldiers and former Reserve components Soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's military records should be corrected to show she is eligible to receive an RCSBP annuity.

2.  The available evidence shows the FSM completed over 15 qualifying years of service and was eligible for a 15-Year Letter in 2003.  There is no available evidence showing the FSM was issued that letter.  Subsequently, a 15-year letter was issued by the CAARNG in 2014.  The unexplained delay in issuing this letter denied the FSM an opportunity to make an appropriate RCSBP election prior to his death in 2005.  Further, any election short of full spouse coverage required the applicant's concurrence and an absolute failure to elect would have defaulted to full immediate spouse coverage by operation of law.

3.  The FSM died prior to attaining age 60 and eligibility to receive retired pay.  Because he had not made an RCSBP election for immediate coverage under option C, there was no coverage in effect at the time of his death.  In addition to the above the law requires the Secretary to pay an immediate annuity to surviving spouses in those cases where the Reserve member dies before receiving his/her eligibility letter.

4.  In view of the above, and as a matter of equity, the applicant's request should be granted by showing the FSM was issued a 15-Year letter prior to his death and that he had made an RCSBP election for immediate coverage for his spouse and paying the applicant an annuity beginning the day after the FSM's 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:

     a.  showing the FSM was issued a 15-Year Letter in 2003 and made a timely RCSBP election of immediate spouse coverage;

     b.  showing the applicant made a request for an RCSBP annuity in a timely manner and that such request had been approved; and
     c.  paying the applicant an RCSBP annuity effective the day after the FSM’s death.



      __________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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20140019078



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