IN THE CASE OF:
BOARD DATE: 8 October 2015
DOCKET NUMBER: AR20150000770
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 that the records of her deceased husband, a former service member (FSM), be corrected to show he made a timely Reserve Component Survivor Benefit Plan (RCSBP) spouse only election and that she be paid a Survivor Benefit Plan (SBP) annuity.
2. The applicant states that the FSM was never briefed by the Army Reserve about signing up for the SBP and therefore he should be enrolled.
3. The applicant provides a one-page letter explaining her application, a copy of the FSMs DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his retirement orders, marriage license, and death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was serving in the U.S. Army Reserve (USAR) in the pay grade of E-7 on 3 February 1993 when he received his notification of eligibility for non-regular retired pay at age 60 (20-Year Letter). The notification advised the FSM that he had 90 days to enroll in the RCSBP or he could enroll in the SBP at the time he applied for retired pay at age 60. There is no indication in his records to show that he enrolled in the RCSBP.
2. On 18 January 1994, the FSM was transferred to the USAR Control Group (Retired).
3. On 15 July 2002, the FSM submitted a DD Form 2656 (Data for Payment of Retired Personnel). He indicated that he was single with no eligible dependents and elected not to participate in the SBP.
4. On 17 April 2004, he was transferred to the AUS Retired List at age 60.
5. The FSM married the applicant on 17 November 2006. However, there is no evidence to show that he attempted to enroll in the SBP within 1 year of his marriage to the applicant.
6. 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 members 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
7. Under the law at the time the FSM was issued his 20-year letter, a member must have made the election within 90 days of receiving the 20-year letter or wait until he/she applied for retired pay and elected to participate in the standard SBP. Failure to elect an option resulted in the default election of option A.
8. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that the FSM should be enrolled in the SBP because he was not properly informed of the provisions of SBP has been noted and appears to lack merit.
2. The FSM declined enrollment in the SBP and there is no evidence to suggest that he attempted to enroll in the SBP within 1 year of his marriage.
3. Accordingly, since there is no evidence to show that he ever enrolled in the RCSBP or attempted to opt for any coverage under that program, there is no basis for granting the applicant the relief she is seeking.
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) AR20150000770
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ABCMR Record of Proceedings (cont) AR20150000770
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