IN THE CASE OF:	

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20140021766 


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 she was eligible to receive a Survivor Benefit Plan (SBP) annuity when the FSM died.

2.  The applicant states the FSM received notification of his eligibility for retired pay on 22 January 1997; however, the DD Form 1883 (SBP Election Certificate) was not included.  The FSM did not receive a DD Form 1883 until 9 December 2000.  Once it was received, the FSM immediately returned it as shown by the Department of the Army receipt date of 29 January 2001.  The applicant believes the delay in returning the DD Form 1883 was not the fault of the FSM, but was due to a failure of the U.S. Army by not providing the form within the allotted timeframe.

3.  The applicant provides:

* DD Form 1883, dated 9 December 2000
* ARPC Form 289 (Mail Contact Card) date stamped 2 January 2001
* Alabama Certificate of Death, issued 23 September 2013

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.  Records show that FSM was born on 10 May 1958.  His 60th birthday would have been 10 May 2018.

3.  In a letter, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 22 January 1997, the FSM was informed that he had met such eligibility.  This letter also informed the FSM that he had only 90 calendar days from the date of receiving the letter in which to submit a DD Form 1883 with his decision concerning Reserve Component SBP (RCSBP).  The letter clearly stated that if he did not make such election within the 90-day period, he would not be entitled to SBP coverage until he attained age 60 and applied for retired pay.  He was warned in this letter that if he should die prior to attaining 60 years of age without having made an election within the 90-day period provided in the letter, his survivors would not be eligible for SBP benefits.

4.  Orders C-05-816024, U.S. Army Reserve Personnel Command, dated 12 May 1998, released the FSM from the U.S. Army Reserve (USAR) Control Group (Annual Training) and placed him in the Individual Ready Reserve (IRR), effective on the date of the orders.

5.  Records at the Defense Finance and Accounting Service (DFAS) show that the FSM submitted a DD Form 1883 dated 9 December 2000 that was received by the USAR Personnel Command on 23 January 2001.  The FSM elected Option C for immediate coverage of spouse and children based on his full retired pay.

6.  Orders 05-012-00013, 81st Regional Readiness Command, dated 12 January 2005, assigned the FSM to the Retired Reserve due to completion of 20 or more qualifying years of service for retired pay at age 60.

7.  An Alabama certificate of death issued 23 September 2013, as provided by the applicant, shows that the FSM died on 1 September 2013 as a result of blunt force injuries sustained in a car accident on 29 July 2013.

8.  DFAS records show the applicant submitted a DD Form 2656-7 (Verification for Survivor Annuity) dated 30 September 2013, wherein she requested to receive an SBP annuity for spouse only.

9.  DFAS records show that on 14 January 2015, DFAS sent an email to the U.S. Army Human Resources Command requesting the necessary documents showing authorization to establish an SBP annuity for the applicant based on the FSM’s death while still a "grey area" reservist.

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:  (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.

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 contends that the FSM's military records should be corrected to show she is eligible to receive an SBP annuity when the FSM died.

2.  The applicant argues that the FSM never received a DD Form 1883 until 2000, but when he did receive the form, he immediately completed it and returned it.

3.  Although it is unclear whether the FSM received a form or not, when he did complete his DD Form 1883 in December 2000, he elected to participate in the RCSBP for spouse and children coverage based on his full retired pay.  The available evidence shows that the DD Form 1883 was received by the USAR Personnel Command in January 2001.  There is no evidence showing that the FSM was notified that his election was invalid because it was submitted outside of the 90-day period specified in his 20-Year Letter.  This failure to notify deprived the FSM of the opportunity to make other arrangements for the applicant’s financial security or to enroll in RCSBP/SBP during an open season such as in 2005-2006.

4.  In view of the above, and as a matter of equity, the records should be corrected to show that the FSM made a timely election to participate in the RCSBP.  Furthermore, the applicant’s request for an annuity benefit should be granted effective 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 that the FSM made a timely election to participate in the RCSBP annuity for full immediate spouse and children coverage; and

	b.  paying the applicant an RCSBP annuity effective 2 September 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)                                         AR20140021766





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ABCMR Record of Proceedings (cont)                                         AR20140021766



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