IN THE CASE OF:    

		BOARD DATE:  20 October 2015	  

		DOCKET NUMBER:  AR20150002112 


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 late 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 (20-year letter).

2.  The applicant states:

* her husband had 90 days from the date he received his 20-year letter to submit a DD Form 1883 (Survivor Benefit Election Certificate) or wait until he applied for retired pay at age 60 to make his election
* when his packet for retirement benefits was received, it was postmarked 12 February 2013
* he was terminally ill at the time and unable to complete his packet before his death on 25 February 2013

3.  The applicant provides:

* U.S. Army Human Resources Command (AHRC) Reserve Component Retirements letter to applicant, dated 18 July 2014
* AHRC Reserve Component Retirements letter to applicant, dated 25 November 2014
* death certificate
* marriage certificate
* AHRC Form 249-E (Chronological Statement of Retirement Points)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Report of Separation from Active Duty)
* direct deposit form
* Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* DD Form 2656-7 (Verification for Survivor Annuity)

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 24 October 1972.  He was released from active duty on 18 October 1974.  His DD Form 214 shows he was credited with 1 year, 11 months, and 25 days of net active service during this period.  Upon release from active duty, he was transferred to the U.S. Army Reserve Control Group (Annual Training).  U.S. Army Reserve Components Personnel and Administration Center Orders 09-1055692, dated 28 September 1982, discharged him from the U.S. Army Reserve Control Group (Reinforcement) effective 5 October 1982.

2.  His NGB Form 22 shows he enlisted in the Virginia Army National Guard on 2 June 1982 and was released from the Virginia Army National Guard on 30 March 1984 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with 1 year, 9 months, and 29 days of net service during this period 

3.  U.S. Army Reserve Personnel Center Orders D-01-203791, dated 28 January 1992, honorably discharged him from U.S. Army Reserve Control Group (Reinforcement) effective 2 February 1992 without transfer to the Retired Reserve.  His AHRC Form 249-E, dated 18 July 2014, shows he was credited with 2 qualifying years for retirement from 1984 through 1994.

4.  The applicant states her late husband received a packet in the mail pertaining to retirement benefits postmarked 12 February 2013, but he was too ill to complete the forms at the time.

5.  On 25 February 2013, the FSM succumbed to metastatic liver cancer at the age of 58.

6.  The FSM's records contain neither a 20-year letter nor a completed DD Form 1883.  The applicant has not provided a copies of either document.

7.  AHRC extended condolences to the applicant on the death of her husband in a letter, dated 18 July 2014, and instructed her to complete and return a DD Form 2656-7 along with the documents necessary to process her claim for survivor benefits.

8.  AHRC informed the applicant in a letter, dated 25 November 2014, that her husband neither made an RCSBP election nor did he apply for retired pay, thus she is not eligible for a survivor benefit annuity.

9.  Army Regulation 135-180 (Retirement for Non-Regular Service) prescribes policies and procedures governing Non-regular (Reserve) retirement.  This regulation implements statutory authorities governing granting retired pay for Non-regular service to Soldiers in the Army National Guard, Army National Guard of the United States, and U.S. Army Reserve.  To be eligible for retired pay at age 60, an individual need not have a military status at the time of application, but must have completed a minimum of 20 years of qualifying service.  A Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Reserve Component Soldiers who complete the eligibility requirements for receipt of retired pay will be notified in writing within 1 year after completion of the required service.

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; 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.

11.  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 were 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 or her 20-year letter.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct her late husband's records to reflect he elected to participate in the RCSBP and provide spousal coverage was carefully considered.

2.  There is no evidence showing the FSM completed a minimum of 20 years of qualifying service for Reserve retirement and was issued a 20-year letter notifying him of his eligibility for retired pay at age 60.  The FSM's records do not contain a signed DD Form 1883 making an RCSBP election.

3.  Regrettably, there is an insufficient evidentiary basis for granting 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 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)                                         AR20150002112



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ABCMR Record of Proceedings (cont)                                         AR20150002112



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