IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016258 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016258 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. IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016258 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 show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. 2. The applicant states: a. At the time her late husband received his 20-year letter, they were not married. After speaking with individuals, they learned he needed to submit paperwork in order to provide her with money in the event something happened to him. b. They made an appointment with personnel at the U.S. Air Force Reserve Center to assist them with completing the necessary paperwork. The U.S. Air Force Reserve personnel sent her husband paperwork to complete and stated that was all her husband had to do. c. Her husband passed away on 17 April 2015 and she applied for the survivor benefits, believing she was entitled because her husband completed the paperwork. She received a denial letter from the U.S. Army Human Resources Command, stating her husband had 1 year from the time they were married to make an election. d. This information was not explained to her husband at the time he completed the paperwork with the U.S. Air Force Reserve personnel. In all fairness to her and her husband, she feels this should have been explained to her husband when he completed the paperwork. e. The error and injustice is the fact that her husband was not given the proper information from the U.S. Air Force Reserve personnel who were assisting him with completing the paperwork to provide her with money in the event something happened to him. 3. The applicant provides: * self-authored statement, dated 28 September 2015 * marriage license * letter from the Casualty Assistance Representative, 99th Mission Support Squadron (Air Combat Command), dated 23 July 2008 * DD Form 2656-5 (RCSBP Election Certificate), dated 27 July 2008 and 4 May 2015 * DD Form 2656-7 (Verification for Survivor Annuity), dated 28 July 2015 * letter from the U.S. Army Human Resources Command, dated 17 September 2015 * letter from a Member of Congress, dated 12 January 2017 CONSIDERATION OF EVIDENCE: 1. The FSM was born on 9 October 1959. 2. Having prior enlisted and warrant officer service in the Regular Army, he was appointed as a chief warrant officer two in the Army National Guard on 31 October 1986. He was promoted to chief warrant officer four effective 15 May 1999. He was honorably discharged from the Army National Guard on 15 May 1999 and transferred to the U.S. Army Reserve. 2. On 19 December 2002, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 3. The applicant provided a marriage certificate showing they married on 31 December 2006. 4. On 14 January 2008, the FSM was assigned to the U.S. Army Reserve Retired Reserve. 5. She provided a letter from the Casualty Assistance Representative, 99th Mission Support Squadron (Air Combat Command), to the FSM, dated 23 July 2008, stating the FSM was in the office a couple of days ago to enroll his spouse in the Survivor Benefit Plan (SBP). They completed the DD Form 2656 (Data for Payment of Retired Personnel), but the FSM also needed to complete the DD Form 2656-5 since his status was Retired Reserve. The form was completed for him and enclosed with the letter. All the FSM needed to do was review the form, sign it, and return it in the pre-addressed envelope. 6. On 17 April 2015, the FSM died at age 55. His death certificate shows he was married to the applicant at the time of his death. 7. She provided a DD Form 2656-5, signed by the FSM on 27 July 2008, showing he elected RCSBP spouse-only coverage, option C (immediate annuity), full retired pay; however, the FSM's signature was not witnessed. Item 19a (Printed Name of Witness), item 19b (Signature), item 19c (Mailing Address of Witness), and item 19d (Date Signed) are blank. The applicant signed the form on 4 May 2015 following his death, indicating she concurred with the FSM's election. The applicant's signature was witnessed and notarized the same date. 8. She also provided a DD Form 2656-7, dated 28 July 2015, wherein she requested receipt of the SBP annuity. 9. On 17 September 2015, the U.S. Army Human Resources Command denied the applicant's request for receipt of the SBP annuity. The denial letter states: a. Effective 1 January 2001, a service member would receive automatic RCSBP coverage for spouse and/or dependent children (immediate annuity) for his or her RCSBP election if no election was made within the required 90 calendar days of the date of his or her notification of eligibility. The FSM received his notification of eligibility for retired pay on 19 December 2002. Unfortunately, the FSM was not married at the time of receipt, so there was no RCSPB coverage. b. According to the marriage certificate, they were married on 29 December 2006. By law, the FSM had 1 year from the date of his marriage to make an election for RCSBP. c. The applicant is not entitled to any benefits. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 2. 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or C in any category of coverage, that election is irrevocable. 3. 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 1 year after the date on which that person marries or acquires that dependent child. DISCUSSION: 1. The evidence shows the FSM was not married when he received his 20-year letter in 2002 and he was not eligible to enroll in the RCSBP at that time. 2. The FSM married the applicant on 31 December 2006 and, by law, he had 1 year from the date of his marriage to enroll in the RCSBP for spouse coverage. He did not elect to participate in the RCSBP within 1 year of his marriage to the applicant. 3. The applicant's contention that U.S. Air Force Reserve personnel sent her husband paperwork to complete and stated that was all her husband had to do is not in question. The letter from the Casualty Assistance Representative, 99th Mission Support Squadron (Air Combat Command), to the FSM, dated 23 July 2008, clearly states the DD Form 2656-5 was completed for him and all the FSM needed to do was review the form, sign it, and return it in the pre-addressed envelope. 4. The evidence shows that although the FSM initiated action to enroll in the RCSBP on 27 July 2008, he failed to have the DD Form 2656-5 witnessed and he did not submit a completed form as instructed. 5. Because the FSM did not complete and return the DD Form 2656-5, the applicant cannot successfully argue that she and the FSM were harmed by having received incorrect advice regarding the enrollment window, as the FSM did not rely on the advice. The applicant is not entitled to an RCSBP annuity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016258 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016258 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2