BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20140020436 


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 her husband's records to reflect he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of receipt of his notification of eligibility to receive retired pay at age 60.

2.  The applicant states:

* she believes an oversight resulted in a mistake in her husband's RCSBP paperwork that they were not made aware of at the time of submission
* they unfortunately did not have enough time to file the proper paperwork or anyone to inform them of the mistake until her husband passed away of brain cancer
* they tried to take care of all of his military records before he passed, but her husband had no idea there was an error in his RCSBP paperwork

3.  The applicant provides:

* marriage certificate
* Tennessee Army National Guard memorandum, dated 12 December 2000, subject:  Notification of Eligibility for Retired Pay at Age 60
* DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 22 August 2002
* letters from medical social workers, Gateway Home Health and Hospice, dated 9 June 2014 and 23 June 2014
* DD Form 108 (Application for Retired Pay Benefits), dated 17 June 2014
* DD Form 2656 (Data for Payment of Retired Personnel), dated 14 June 2014
* death certificate, dated 9 July 2014
* letter to applicant from the Department of Veterans Affairs Pension Management Center, dated 14 August 2014
* DD Form 2656-7 (Verification for Survivor Annuity), dated 26 August 2014
* Chronological Statement of Retirement Points, dated 9 September 2014
* Army National Guard Current Annual Statement, dated 9 September 2014
* letter from U.S. Army Human Resources Command (HRC) to the applicant, dated 29 October 2014
* note from the applicant including photograph of her husband, dated 18 November 2014

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 14 September 1977.  After multiple reenlistments in the Regular Army, the applicant was discharged on 6 December 1989 and enlisted in the U.S. Army Reserve on 7 December 1989.  On 10 March 1990, he enlisted in the Army National Guard of the United States.

3.  On 12 December 2000, a Tennessee Army National Guard memorandum notified the FSM of his eligibility for retired pay at age 60 (commonly referred to as the 20-year letter).  The body of the letter does not contain reference to the RCSBP, however the list of enclosures at the bottom of the letter states a Survivor Benefit Plan (SBP) Summary was included with the letter.

4.  On 22 August 2002, the FSM completed a DD Form 1883, electing full, immediate, spouse-only SBP coverage, option C.  The explanation of option C listed on the form states:  "I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60."  The form was signed by the FSM, his wife, and a witness on 22 August 2002 and date stamped "Sep 17 2002" and "Certified True Copy."

5.  On 1 December 2002, the applicant was transferred to the U.S. Army Reserve Retired Reserve but was unable to submit an application for retired pay at that time as he had not yet reached age 60.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was credited with 24 years, 6 months, and 15 days of total service for pay.

6.  On 28 May 2014, the FSM was admitted to Gateway Hospice care due to a diagnosis of malignant neoplasm cancer of the lung with metastasis to the brain with a prognosis of less than 6 months to live.  On 7 July 2014, the FSM succumbed to his illness.

7.  On 14 August 2014, the Department of Veterans Affairs found the applicant was entitled to Death and Indemnity Compensation as her husband died from a service-related disability.

8.  On 29 October 2014, HRC informed the applicant that she was not entitled to RCBP benefits because her husband did not make an election within the required 90 calendar days from the date he received his 20-year letter nor did he apply for retired pay as he would not have reached age 60 until 21 August 2017, at which time he would have been entitled to make an SBP election.

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; or (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.  If death occurred before age 60, the RCSBP costs for options B and C were 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.  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.

11.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct her husband's records to reflect he elected to participate in the RCSBP within 90 days of receipt of his 20-year letter was carefully considered.

2.  The FSM was issued his 20-year letter on 12 December 2000.  The 20-year letter and enclosures may or may not have properly advised him regarding the significance of the 90-day enrollment window.

3.  His DD Form 1883, signed and witnessed by an individual nearly 12 years prior to his death, clearly shows his intent to elect full, immediate, spousal RCSBP coverage.  It appears the election was dispatched and posted to his file, as evidenced by the "Sep 17 2002" and "Certified True Copy" stamps appearing on the document.  It appears that at no point was the applicant or the FSM notified of the form's technical invalidity.

4.  Had he been informed at the time that his election 2002 was not timely, the FSM would have had an opportunity to make a proper election during the next open enrollment season, which was conducted from 1 October 2005 to 30 September 2006, well before his illness and subsequent death.  He would also have had the opportunity to make other non-SBP related arrangements for the applicant's financial security.  However, without the knowledge that his spouse was not covered by the RCSBP and that the election he made for full, immediate coverage upon his transfer to the Retired Reserve would not be honored, he was excluded from the opportunity to make other provisions.  Accordingly, as a matter of equity the FSM's record should be corrected to show he made a timely election for full immediate spousal coverage.

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 elected full, immediate spousal RCSBP coverage on 12 December 2000, the date of his notification of eligibility to receive retired pay at age 60.



      ___________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)                                         AR20140020436



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140020436



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1