BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160001136 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 BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160001136 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. BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160001136 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 spouse of a deceased former service member (FSM), requests receipt of the Survivor Benefit Plan (SBP) annuity based on the death of her husband. 2. The applicant states: a. Her late husband passed away on 19 July 2008. He retired after 26 years of military service. b. She was told by the local Veterans Service Office that her late husband had acquired enough points for retirement. c. A human resources person completed insurance paperwork based on her late husband's available options. d. Her late husband served his country for 26 years and should have had retirement benefits. Since he died, she believes she should be receiving survivor benefits. 3. The applicant provides: * State of Minnesota County of Crow Wing Marriage Certificate, dated 16 December 1989 * Notification of Eligibility for Retired Pay at Age 60 (20-Year), dated 5 March 1993 * State of Minnesota Death Certificate, dated 19 July 2008 * Report of Casualty, dated 30 September 2009 * DD Form 2656 (Data For Payment of Retired Personnel), dated 13 December 2016 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. The FSM was born on 23 January 1950. 3. On 19 May 1984, the FSM enlisted in the U.S. Army Reserve (USAR). 4. The applicant provided a marriage certificate showing she and the FSM were married on 16 December 1989. 5. On 5 March 1993, the USAR Personnel Center issued the FSM a 20-year letter notifying him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application. This letter further informed him: a. He was entitled to participate in the Reserve Component SBP (RCSBP) established by Public Law 95-397. This plan enabled him to provide an annuity for his spouse and other eligible beneficiaries. b. Upon receipt of his 20-year letter, he had 90 days in which to elect to participate in the RCSBP or remain uncovered by the plan until he reached age 60 when he would be afforded the opportunity to elect SBP coverage. 6. There is no documentation in the FSM's records maintained by the U.S. Human Resources Command (HRC) or the Defense Finance Accounting Service showing he made a valid and timely RCSBP election for spouse coverage within 90 days of receipt of his 20-year letter. 7. The FSM's records do not contain orders transferring him to the Retired Reserve; however, HRC has records showing he transferred to the Retired Reserve on 16 July 1996. 8. The applicant provided a death certificate showing the FSM died on 19 July 2008; he was 58 years of age at the time. The death certificate shows the FSM was married at the time of his death and lists the applicant as his spouse. 9. The applicant provided a DD Form 2656, dated 13 December 2016, showing she completed and signed the form to receive her late husband's retired pay benefits. She indicated she was married to the FSM and they had no dependent children. She elected SBP coverage for spouse based on the FSM's full gross pay. REFERENCES: 1. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options are available: * Option A – elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B – elect that a beneficiary receive an annuity if they die before age 60, but delay payment until the date of the member's 60th birthday * Option C – elect that a beneficiary receive an annuity immediately upon their death if before age 60 2. Failure to make an election automatically defaulted to option A. 3. Congress periodically passes legislation that establishes open enrollment seasons, which allow SBP enrollment for those previously not participating in the program or allows participating members to make changes to their coverage amounts. 4. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to delay making an RCSBP election until age 60. This 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/her 20-year letter. DISCUSSION: 1. By law and regulation, Reserve Component Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter informing them of their retirement eligibility. They are offered the opportunity to enroll in the RCSBP. The law in effect at the time required the FSM to make an election and return the enrollment form within 90 days of receipt of the 20-year letter. 2. The evidence of record shows the USAR issued the applicant a 20-year letter on 5 March 1993. The letter contained an RCSBP summary and explained the FSM's rights concerning the RCSBP. The FSM's records do not contain any documentation showing he made an RCSBP election. In addition, the applicant has not provided any evidence showing the FSM elected to participate in the RCSBP. 3. By not submitting an RCSBP election when he received his 20-year letter, the FSM effectively deferred his election until reaching age 60. As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the spouse or concurrence by the spouse was not required by law at the time. Since it appears he chose to defer his election until reaching age 60, there would be no coverage until he applied for retired pay and made an election at that time. 4. Enrollment in the RCSBP/SBP is a personal decision made by the service member. The FSM did not make an election within 90 days of receiving his 20-year letter. As he died before reaching age 60, he did not have SBP coverage at the time of death. By law, the applicant is not entitled to an SBP 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) AR20160001136 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001136 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2