BOARD DATE: 2 January 2014 DOCKET NUMBER: AR20130006896 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 entitlement to receipt of Survivor Benefit Plan (SBP) payments. 2. The applicant states her spouse, a former service member (FSM), passed away after serving over 20 years but prior to reaching age 60. They had elected to not make a decision on participation in the SBP until the FSM reached age 60. 3. The applicant provides copies of: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * marriage certificate * death certificate * Army Reserve Personnel Command (ARPC) Form Letter 819 (Notification of Eligibility for Retired Pay at Age 60 (20-year letter) * ARPC Form 249-E (Chronological Statement of Retirement Points) * DD Form 1883 (SBP Election Form) * DD Form 2656-7 (Verification for Survivor Annuity) * W-4P (Withholding Certificate for Pension Annuity Payments) * FMS Form 2231 (Direct Deposit) * U.S. Army Human Resources Command (HRC) SBP denial letter CONSIDERATION OF EVIDENCE: 1. The FSM, an Army Reserve master sergeant with over 25 years of active and inactive service, last served on active duty from 3 March 2003 through 21 January 2005. He continued to serve in the active Reserve through the date of his death. 2. He completed 20 years of creditable service toward a Reserve retirement and received a 20-year letter, dated 17 July 2002. 3. On 7 August 2002, the FSM and the applicant signed a DD Form 1883. The option selected was option A, to defer a decision until reaching age 60. 4. The FSM died on 30 January 2008 at age 54. 5. The applicant applied for SBP benefits on 8 March 2013, approximately the time the FSM would have reach age 60. 6. On 18 March 2013, HRC notified the applicant that because they had elected not to participate in the Reserve Components (RC) SBP at the time the FSM received his 20-year letter there was no entitlement to receipt of benefits. 7. 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 (and participate in SBP), 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. 8. If a member elects Option A, they may elect to participate when they reach age 60. Election of Option B or C is irrevocable. DISCUSSION AND CONCLUSIONS: 1. There is no provision in law or regulation for making an RCSBP/SBP election except at the initial date of qualification or at attaining age 60. 2. The applicant and the FSM declined participation in the RCSBP on 7 August 2002. 3. Having made the nonparticipation election, the FSM and his wife were in effect betting that the FSM would live to age 60 in order to again decide whether or not to participate. Unfortunately, the FSM died prior to reaching age 60. 4. The fact that the FSM died prior to reaching the second opportunity to make an election to participate in SBP does not negate the earlier decision not to participate. Therefore, no relief is warranted. 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) AR20130006896 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130006896 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1