IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20140017632 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 former service member (FSM), requests correction of her late husband's records to show he elected to enroll in the Reserve Component Survivor Benefit Plan (RCSBP) within 90 days of receipt of his 20-year letter. 2. The applicant states: * the FSM died at age 48 * she and her husband were not aware of the 90-day rule to make an election * she kept asking and she was told to apply at age 65 3. The applicant provides: * Chief, Reserve Component Retirements Branch, U.S. Army Human Resources Command (HRC) , letter, dated 15 September 2014 * Chief, Reserve Component Retirements Branch, HRC, letter, undated * FSM's DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), dated 7 July 1997 * FSM's U.S. Army Reserve (USAR) reassignment orders, dated 24 October 1997 * FSM's U.S. Army Total Personnel Command promotion memorandum, dated 2 December 1998 * FSM's DD Form 214 (Report of Separation from Active Duty) for the period ending 30 January 1976 * DD Form 2656-7 (Verification for Survivor Annuity), undated * FSM's AHRC Form 249-E (Chronological Statement of Retirement Points), dated 9 September 2014 * FSM's U.S. Army Reserve Personnel Center (ARPERCEN) ARPC Form 3854 (Reserve Component Supplemental Survivor Benefit Plan Election Certificate), dated 30 June 1997 * marriage certificate * death certificate * two death certificate amendments * driver's license * social security card * Standard Form 1199A (Direct Deposit Sign-Up Form), undated * Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 25 July 2014 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 10 July 1950. 3. The FSM was appointed as a Reserve commissioned officer in the rank of second lieutenant on 21 May 1972. 4. On 20 October 1972, he was ordered to active duty. 5. The applicant and FSM were married on 5 April 1975. 6. On 30 January 1976, he was released from active duty to the control of the USAR. 7. The FSM was issued a memorandum from ARPERCEN, St. Louis, MO, dated 13 November 1995, notifying him he had completed the required years of service for eligibility for retired pay upon application at age 60 (20-year letter). The memorandum informed the FSM he was entitled to participate in the RCSBP and advised him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883. If he did not submit his election within 90 calendar days, he would not be entitled to RCSBP coverage until he applied for retired pay at age 60. If he did not elect coverage and should die before age 60, his survivors would not be entitled to benefits. 8. On 30 June 1997, the FSM completed an ARPC Form 3854 wherein he elected to participate in the Reserve Component Supplemental Survivor Benefit Plan at the 20-percent level of coverage. 9. On 7 July 1997, the FSM completed a DD Form 1883 wherein he placed an "X" in item 8a (Spouse Only), indicating the type of coverage he desired. He placed an "X" in item 9a (Full), indicating he elected to provide an annuity based on the full amount of his retired pay. He placed an "X" in item 9c (Option B – Age 60), indicating he elected to provide an immediate annuity beginning on the 60th anniversary of his birth should he die before that date or on the day after the date of death should he die on or after his 60th birthday. 10. On 24 October 1997, the FSM was transferred to the USAR Retired Reserve in the rank of lieutenant colonel. 11. On 13 March 1999, the FSM died at 48 years of age. 12. In 2003, ARPERCEN merged with the U.S. Total Army Personnel Command and was redesignated as HRC. 13. The applicant provided two letters from HRC, undated and dated 15 September 2014, wherein she was informed: * the FSM made an election more than 90 days after receipt of his 20-year letter * the FSM would not have been entitled to elect SBP coverage until he applied for retired pay at age 60 * she was not entitled to any benefits 14. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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. 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 or she applied for retired pay and elected to participate in the standard SBP. DISCUSSION AND CONCLUSIONS: 1. By law and regulation, Reserve Component Soldiers who complete 20 or more years of qualifying service for Non-regular (Reserve) retirement are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP. The evidence of record confirms the FSM was issued a 20-year letter on 13 November 1995. 2. The FSM's DD Form 1883 and ARPC Form 3854 are both dated in 1997, well beyond 90 days after issuance of his 20-year letter. Regrettably, the FSM did not live to age 60 and he did not elect option C which would have afforded the applicant an annuity immediately upon his death. 3. Nevertheless, the FSM's DD Form 1883 and ARPC Form 3854 were received by ARPERCEN and posted to his file. At no time prior to his death was the FSM notified of a problem with the forms. This deprived him of the opportunity to make other arrangements for his spouse. 4. Accordingly, it would be equitable to correct the FSM's records to show he submitted his DD Form 1883 and ARPC Form 3854 on 30 December 1995 within 90 days of receipt of his 20-year letter and they were received and processed by ARPERCEN (now known as HRC) in a timely manner. 5. In view of the foregoing, the FSM's records should be corrected as recommended below. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM submitted his DD Form 1883 and ARPC Form 3854 on 30 December 1995 within 90 days of receipt of his 20-year letter and they were received and processed by ARPERCEN (now known as HRC) in a timely manner. 2. The applicant is advised that the Defense Finance and Accounting Service will collect any RCSBP premium costs due as a result of this records correction. ___________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) AR20140017632 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017632 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1