IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20140019761 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 reconsideration of her previous request to correct her husband's military records to show he filed a DD Form 1883 (Survivor Benefit Plan (SBP) Certificate) electing Option C within 90 days of receiving his 20-year letter. 2. The applicant states she found a letter signed by her husband concerning the issue of Reserve Component (RC) SBP. 3. The applicant provides a letter, dated 5 November 1997, signed by the FSM. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130008631 on 5 February 2014. 2. The FSM was born on 23 February 1954. After serving 2 years, 11 months, and 26 days in the Regular Army he was transferred to the U.S. Army Reserve (USAR) where he served continuously until his retirement. The applicant and the FSM were married on 21 February 1981. 3. The FSM was issued a memorandum, from the U.S. Army Reserve Personnel Center, St. Louis, MO, dated 21 May 1996, notifying him he had completed the required years of service to make him eligible for retired pay on application at age 60 (20-year letter). The memorandum informed the FSM he was entitled to participate in the RC-SBP and 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 RC-SBP 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. 4. The FSM submitted a DD 1883, dated 5 November 1997, that shows he enrolled in the RC-SBP and elected spouse and children coverage, based on the full amount of his retired pay and elected Option C (immediate coverage). 5. On 15 December 1997, the FSM was transferred to the Retired Reserve due to medical disqualification. 6. On 11 February 2013, the FSM died at the age of 58. 7. On 16 April 2013, U.S. Army Human Resources Command (HRC) denied the applicant's request for SBP benefits. By law the FSM had 90 calendar days from the date he received his 20-year letter to submit his DD Form 1883. According to HRC records his election was made past the 90 calendar days of his 20-year letter. 8. The applicant now provides a letter, dated 5 November 1997, signed by her husband, providing an explanation for the late submission of his DD Form 1883. a. The FSM stated he received his 20-year letter, dated 21 May 1996, on 7 or 8 June 1996. On or about August 1996, his briefcase, which contained his 20-year letter, was stolen from his privately owned vehicle. He made a request for another copy of the letter in question to his unit but no response had been received. b. On Monday, 3 November 1997, he received his stolen briefcase. On 5 November 1997, he completed the DD Form 1883 and forwarded it to HRC. 9. Public Law 95-397, the RC-SBP, 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. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. 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 wait until he/she applied for retired pay and elect to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A. 10. Periodically Congress has authorized changes in SBP/RCSBP participation during open enrollment periods to provide an opportunity for eligible members to elect to participate in or increase their current level of participation in SBP/RCSBP. a. Public Law 105-261, section 642, enacted 17 October 1998, established an open enrollment period to be conducted from 1 March 1999 through 29 February 2000. b. Public Law 108-375, Section 645, enacted 28 October 2004, allowed for an open enrollment period from 1 October 2005 through 30 September 2006. DISCUSSION AND CONCLUSIONS: 1. HRC's letter, dated 16 April 2013, stated the FSM's RC-SBP election was made after the 90 calendar days, required by law, as stated in his 20-year letter. This would cause his election to default to Option A. 2. The FSM's letter, dated 5 November 1997, clearly stated that he did receive his 20-year letter on 7 or 8 June 1996. He stated his briefcase was stolen in August 1996 and his 20-letter was in the briefcase. He requested another copy of the letter, and a DD Form 1883, from his unit, but had not received a response. Upon recovery of his briefcase on 3 November 1997, within 2 days he submitted the DD Form 1883 with his RC-SBP election. This form was then received at HRC and posted to his file on or about 13 November 1997. At no time prior to his death was the FSM notified of a problem with the form's validity. This deprived him of the opportunity to make other arrangements for his family, including participation in the RC-SBP/SBP open enrollment periods conducted 1 March 1999 through 29 February 2000 and 1 October 2005 through 30 September 2006. 3. His DD Form 1883 clearly shows he intended to enroll in RC-SBP with spouse and children coverage based on the full amount of his retirement pay and that he elected Option C. Further, his contemporaneous letter explaining events surrounding the theft of his briefcase sufficiently establishes that any delay in submission was not due to lack of diligence on his part, but rather the criminal behavior of others. 4. Accordingly, it would be equitable to correct the FSM's records to show he submitted a DD Form 1883 on 12 June 1996 showing he enrolled in the RC-SBP and elected spouse and children coverage, based on the full amount of his retired pay and elected Option C (immediate coverage). BOARD VOTE: ____x___ ___x____ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20130008631, dated 5 February 2014. As a result, the Board recommends that all Department of the Army records be corrected to show the FSM submitted a DD Form 1883 on 12 June 1996 showing he enrolled in the RC-SBP and elected spouse and children coverage, based on the full amount of his retired pay and elected Option C (immediate coverage). ___________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) AR20140019761 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140019761 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1