BOARD DATE: 22 November 2011 DOCKET NUMBER: AR20110007893 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, in effect, a Reserve Component Survivor Benefit Plan (RCSBP) annuity. 2. The applicant states her deceased husband, an FSM in the Army National Guard, received a Notification of Eligibility for Retired Pay for Non-Regular Service (20-Year Letter) on 29 June 1995. On 22 August 1995, he completed a DD Form 1883-R (Survivor Benefit Plan Election Certificate) by choosing Option A – Decline Election Until Age 60. 3. The applicant continues that the FSM retired from the Army National Guard on 8 October 1999. She and the FSM were married in 2003 and the FSM was not aware that he needed to change his RCSBP election to Option C – Provide an Immediate Annuity (to begin on the day after the date of the Soldier’s death whether before or after age 60). 4. The applicant concludes that in 2009, the FSM was diagnosed with terminal cancer. On 12 October 2009, he attempted to change his RCSBP election to Option C by sending a letter to the U.S. Army Human Resources Command (USAHRC), St. Louis, MO. He received no response and he died on 15 May 2010 without confirmation he changed his option. 5. The applicant provides: * a letter to the Army Board for Correction of Military Records (ABCMR), dated 28 March 2011 * a letter to USAHRC, Fort Knox, KY, dated 4 January 2011 * a DD Form 1883-R, dated 22 August 1995 * their State of Michigan Marriage License * the FSM's State of Michigan Certificate of Death * a DD Form 2656-7 (Verification for Survivor Annuity), dated 4 January 2011 * a Standard Form 1199A (Direct Deposit Sign-Up Form), dated 4 January 2011 and voided personal check * a letter to USAHRC, St. Louis, dated 12 October 2009 with enclosures CONSIDERATION OF EVIDENCE: 1. The FSM served in the Michigan Army National Guard (MIARNG) from 9 October 1975 through 17 October 1998. On 29 June 1995, he received his 20-Year Letter stating he qualified for non-regular retirement at age 60. 2. On 22 August 1995, the FSM completed a DD Form 1883-R. At that time, he opted to decline making an election until he reached age 60 (18 October 2012). 3. The FSM married the applicant on 31 January 2003. There is no record the FSM attempted to change his RCSBP option during 1-year period following their date of marriage. 4. In 2009, the FSM was diagnosed with cancer. On 12 October 2009, he wrote a letter to USAHRC, St. Louis, seeking to update his records and request spouse election for his spouse. He further requested any forms he may need to sign or fill out on this matter. There is no record of a response. 5. The FSM died on 15 May 2010. He was 57 years old. 6. Public Law 92-425, enacted 21 September 1972, established the SBP. SBP is a plan whereby a portion of a military retiree's pay is paid to a category of beneficiary. Without this plan, all retired pay would stop upon the death of the retiree. The plan, which is partially funded by the government, is paid for by monthly deductions from the retired pay of the member. The decision to elect in or out of the coverage is made at the time of retirement and is generally irrevocable. Elections are made by category, not by name. 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 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 8. By law, a Soldier who has no spouse on the date an RCSBP election is made and later marries has 1 year after the date of the marriage to make an RCSBP election. Additionally, there is a 1-year waiting period for the new spouse’s eligibility to receive an SBP annuity following post-retirement marriage. DISCUSSION AND CONCLUSIONS: 1. The applicant requests an RCSBP annuity as a result of the FSM's death. 2. When the FSM completed his DD Form 1883 in 1995, he elected to decline making an election until he reached age 60. When he married in January 2003, he had a 1-year window of opportunity in which to change his election option to provide SBP coverage for his spouse, the applicant. However, he failed to do so. 3. Regrettably, the applicant is not entitled to an SBP annuity. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ 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. _______________________ 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) AR20110007893 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110007893 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1