IN THE CASE OF:  	  

		BOARD DATE:  27 August 2015	  

		DOCKET NUMBER:  AR20140020024 


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 spouse of a former service member (FSM) (now deceased), requests reconsideration of her earlier application wherein she sought the correction of her deceased husband's records to show she is entitled to Survivor Benefit Plan (SBP) benefits based on his death.

2.  The applicant states, in effect, her initial application was denied because the FSM had not made an SBP election.  She is providing an election form which shows the FSM's notarized election, made on 29 September 2011.

3.  The applicant provides:

* DD Form 2656-6 (SBP Election Change Certificate), dated 29 September 2011
* letter, dated 22 August 2012, from the U.S. Army (USA) Human Resources Command (HRC)
* Orders Number 189-27, dated 18 August 1992, issued by the Oklahoma Army National Guard (OKARNG)
* DD Form 2656-7 (Verification for Survivor Annuity), dated 10 August 2012
* certificate of death
* certificate of marriage
* Department of the Treasury, Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments), signed on 10 August 2012
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Direct Deposit Form

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130007305 dated 19 December 2013.

2.  The applicant provided a new argument that warrants consideration by the Board.

3.  The FSM was born on 26 June 1955.

4.  On 3 March 1975, the FSM enlisted in the Regular Army, where he served until 8 March 1979.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).  

5.  On 27 January 1981, he enlisted in the Arkansas Army National Guard (ARARNG).  

6.  On 1 February 1982, he enlisted in the OKARNG.  

7.  On 1 September 1990, he was promoted to the rank/grade of master sergeant (MSG)/E-8, with immediate appointment to the rank of first sergeant (1SG).

8.  On 9 July 1992, he was separated from the OKARNG for the purpose of immediate enlistment in the USAR.

9.  On 10 July 1992, he enlisted in the USAR in the rank/grade of 1SG/E-8.

10.  Orders 11-10, issued by Headquarters, 95th Division (Institutional Training), Oklahoma City, OK, dated 11 January 1995, released him from his current assignment and transferred him to the USAR Control Group (Retired Reserve).

11.  On 22 August 1995, U.S. Army Reserve Personnel Center, issued the FSM his Selected Reserve 15-year letter.  This letter notified the FSM that he had completed at least 15 qualifying years of service and he would be eligible for retired pay upon application at age 60.  Paragraph 5 of this letter contains the following language:

You are entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP).  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 letter to submit your SBP election certificate (DD Form 1883).  If you do not submit your election within 90 calendar days, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL YOU REACH AGE 60 and apply for retired pay.  IF YOU DO NOT ELECT COVERAGE AND SHOULD YOU DIE BEFORE AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO A SURVIVOR ANNUITY (emphasis added).  More detailed information concerning participation in the RC-SBP and blank DD Form 1883 are enclosed.

12.  A review of the FSM's record shows he was married on at least two occasions during his period of military service.  It appears he divorced Cheryl on 24 May 1982 and he married Carol on 14 February 1985.  His record shows he married at least twice after his marriage to Carol; however, his date of divorce from Carol cannot be determined.  It is unclear whether or not he was married when he received his 15-year letter; however, it is clear he had minor children at the time.  Despite this, there is no documentation in his record that shows he elected to participate in the RCSBP after receiving his 15-year letter (emphasis added).

13.  On 30 May 1998, he married Gail and they were divorced on 14 July 2003.

14.  On 20 June 2005, he married Iris, the applicant.

15.  On 29 September 2011, over 6 years after his most recent date of marriage, the FSM completed a DD Form 2656-6, wherein he elected spouse-only SBP coverage, based on full retired pay.  There is no indication whether or not this form was accepted by the Defense Finance and Accounting Service.

16.  On 23 July 2012, the FSM died at the age of 57.

17.  On 10 August 2012, the applicant completed a DD Form 2656-7, wherein she requested payment of a survivor annuity based on the death of her husband.

18.  On 22 August 2012, the Chief, Retired Pay Branch, USA HRC, denied the applicant's request for a survivor annuity, citing the FSM's failure to make an SBP election within 90 calendar days of receipt of his 15-year letter.

19.  The applicant provides numerous documents related to her application for SBP benefits based on the FSM's death.  She specifically cites the DD Form 2656-6, mentioned above.  Neither this form, nor the other documents provided give an indication the FSM enrolled in the RCSBP when appropriate.
20.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provides a means for those who have qualified for Reserve retirement, but who are not yet age 60 [upon which they would be eligible to begin drawing retired pay, upon request, and to participate in the SBP], to provide an annuity to 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 (the member) die before age 60 but delay payment until the date the member would have reached age 60; 
(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 (20-year letter), or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

21.  Public Law 108-375, enacted 28 October 2004, established an open season to be conducted 1 October 2005 through 30 September 2006.  This law allowed persons not currently participating in the SBP (or RCSBP) to participate in the SBP during the open enrollment period.  Extensive publicity was given in Army Echoes, a publication mailed to all Army retirees.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be found eligible to receive SBP benefits.  She bases her contention on a notarized DD Form 2656-6, signed on 
29 September 2011, which identifies the applicant as the FSM's spouse and shows the FSM elected spouse-only coverage for full retired pay.

2.  By law and regulation, Reserve Component Soldiers who are issued a 
20-year letter (or Selected Reserve 15-year letter) are offered the opportunity to enroll in the RCSBP.  The law in effect at the time the FSM received his 15-year letter required him to make an election and return the enrollment form within 90 days of receipt (emphasis added).  

	a.  Based upon the date of the Selected Reserve 15-year-letter (which was issued on 22 August 1995), he should have responded at some point on or shortly after 19 November 1995 (90 days later).  The FSM's record, however, does not show he elected to participate in the RCSBP within the required 90-day period.  

	b.  The FSM had an opportunity again to enroll in the RCSBP during an open enrollment season between 1 October 2005 and 30 September 2006.  There is no indication he elected to do so.  
	c.  While the applicant offers a document which shows an SBP election was made by the FSM, the date of that election is 29 September 2011, which is, at best, 15 years after the 90-day timeframe required by law.  As such, it is an invalid election.

	d.  By not responding within the required 90 day time period and skipping Open Season enrollment opportunities, the FSM effectively deferred his SBP election to age 60.  Unfortunately, he died at age 57; therefore, he was not able to make an election at a time permitted by law.

3.  Based on the foregoing, there is insufficient basis upon which to grant the 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130007305, dated 19 December 2013.



      ____________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)                                         AR20140020024



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ABCMR Record of Proceedings (cont)                                         AR20140020024



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