IN THE CASE OF:	  

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140020468 


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 the DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP)) of her deceased husband a former service member (FSM) be corrected to show he elected Option C (Immediate Annuity) instead of Option A (I decline to make an election until age 60).  She also requests a personal hearing. 

2.  The applicant states the FSM was pressed for time.  He received his Notice of Retirement Eligibility on 24 February 2004 and he then filed his completed retirement packet, including the DD Form 2656-5 on 19 March 2004.  During this time, he had volunteered to go to Iraq as a “KBR” contactor and he left right after his packet was completed.  Since he filled out this packet, she has had no help from the military.  The FSM died before the election could be corrected.  She did not know what to do.  She had been told numerous times over the past 8 to
9 years that she had no option of changing the election. 

3.  The applicant provides:

* DD Form 2656-7 (Verification for Survivor Annuity)
* Denial letter from the U.S. Army Human Resources Command (HRC)
* Death certificate 
* Marriage certificate 
* W-4P Form (Withholding Certificate for Pension or Annuity Payment)
* Direct Deposit Form and voided check 
* DD Form 2656-5
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) 
CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he was born in July 1953.  He and Marsha, the applicant, were married on 11 December 1985.

2.  The FSM served in the U.S Marine Corps, Army National Guard, and U.S. Army Reserve (USAR), the FSM was appointed as a Reserve warrant officer of the Army and executed an oath of office on 4 August 1995. 

3.  He transferred to the Kentucky Army National Guard (KYARNG) and executed an oath of office on 10 October 2002.  He served in a variety of assignments and he attained the rank of chief warrant officer three (CW3). 

4.  On 24 February 2004, Headquarters, KYARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

5.  On 19 March 2004, within 90 days of receiving his 20-Year Letter, the FSM submitted a DD Form 2656-5.  He indicated he was married to Marsha, the applicant and they had no dependent children.  

* he selected the RCSBP coverage block for Option A, indicating that he declined to make an election until age 60 
* he elected to decline supplemental coverage for his spouse 
* he authenticated this form with his signature 
* his spouse, Marsha, indicated she had read and understood the information that explained the options available and the effects of these options; she was aware that her signature constituted concurrence and that she may not change her mind at a later date regarding the RCSBP election 
* she concurred with the FSM' selection, signed the form, and her signature was notarized 

6.  On 3 November 2004, the KYARNG published orders transferring the FSM to the Retired Reserve in the rank of CW3 effective 31 October 2004.  

7.  The FSM died on 5 November 2010.  He was 57 years of age at the time.  His death certificate shows he was married and the applicant's name is listed as his spouse. 

8.  On 24 September 2014, the applicant completed a DD Form 2656-7, a form used by a surviving spouse, to verify eligibility for an annuity.  She indicated she was legally married to the FSM at the time of death and requested payment of the annuity. 
9.  On 10 November 2014, in a letter, HRC advised the applicant in reference to her eligibility for an SBP annuity based on the military service of her late husband.  She was advised that the RCSBP was established by Public Law
95-397 to provide an annuity for the spouse and other eligible beneficiaries for Reserve Soldiers or former Soldiers who have completed 20 years of service for retired pay at age 60.  By law, the FSM had 90 calendar days from February 24, 2004, the date he received his 20 year letter, to submit an SBP election.  The FSM completed the SBP election on 19 March 2004.  He chose Option A (Defer), which means he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60.  Therefore, she is not entitled to a survivor benefit annuity. 

10.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age
60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

11.  Once a member elects either option B or option 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 the RCSBP - the options automatically roll into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

12.  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.

13.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  By law and regulation, RC Soldiers who complete 20 or more years of qualifying 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.  The applicant's records show he made an election and elected Option A (I decline to make an election until Age 60).  His spouse, Marsha, concurred with this election by placing her signature in the appropriate block.  

3.  The decision to participate or not to participate in the RCSBP/SBP is a personal decision made by the Soldier and his/her spouse upon receiving the  20-Year Letter.  The FSM and applicant together chose to defer his election to age 60.  Because he chose to defer his election to age 60 and died before age 60, there was no coverage at the time of death.  

4.  There is no error in the FSM's records.  The applicant should not be granted 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 for correction of the records of the individual concerned.



      _______ _   __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)                                         AR20140020468



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140020468



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1