IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150003863 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 Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 2. The applicant states: * she is being denied receipt of her late husband's pension based on his failure to submit a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) within 90 days of receipt of his 20-year letter * they were never notified this was an issue, thereby denying them the opportunity to secure a future some other way * his unit failed to provide the paperwork in the allotted time * her late husband proudly served this country for 26 years in both an active and Reserve status * her late husband passed away suddenly on our Nation's birthday, 4 July * she is employed but does not make enough income to keep her home * she is willing to make a personal appearance if it is deemed necessary 3. The applicant provides: * FSM's 20-year letter * FSM's Chronological Statement of Retirement Points * FSM's DA Form 1883 * DD Form 2656-7 (Verification for Survivor Annuity) * two Certificates of Marriage * 2014 Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payment) * Direct Deposit Sign-up Form * Certificate of Birth * FSM's Certificate of Death CONSIDERATION OF EVIDENCE: 1. The FSM was born on 26 September 1959. 2. The applicant and the FSM were married on 27 November 1981. 3. Having had prior honorable enlisted service in the Regular Army, the FSM enlisted in the U.S. Army Reserve on 13 November 1982. 4. On 4 February 1999, the U.S. Army Reserve Personnel Command (ARPERSCOM) (now known as the U.S. Army Human Resources Command (HRC)) issued the FSM a 20-year letter notifying him of his eligibility for Reserve retired pay upon application at age 60 and advising him that he had 90 days from the date of receipt of the memorandum to submit his DD Form 1883 by law. He was advised that he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60 if he did not submit his election within 90 calendar days. 5. On 31 December 2000, the FSM submitted a DD Form 1883 nearly 2 years after issuance of his 20-year letter. 6. On 29 August 2002, the FSM was discharged from the U.S. Army Reserve under honorable conditions. 7. On 4 July 2014, the FSM died at 54 years of age. 8. The applicant provided: a. the FSM's DD Form 1883, dated 21 July 2000, wherein he placed an "X" in item 8b (Spouse and Children), 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 retired pay. He placed an "X" in item 9c (Option C – immediate coverage) indicating he elected to provide an immediate annuity; b. the FSM's Chronological Statement of Retirement Points, dated 9 July 2014, showing he completed 23 years, 2 months, and 5 days of qualifying service for Reserve retirement; c. a DD Form 2656-7, dated 16 July 2014, requesting a survivor annuity; d. a direct deposit sign-up form, dated 23 July 2014, for receipt of the FSM's military pension; and e. a 2014 Internal Revenue Service W-4P, dated 31 July 2014, for pension or annuity payments. 9. 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. 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 elected to participate in the standard SBP. 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. By law and regulation, Reserve Component Soldiers who complete 20 or more years of qualifying service for 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 4 February 1999. 2. The FSM's DD Form 1883 is dated 31 December 2000, well beyond 90 days of receipt of his 20-year letter. 3. Although the FSM elected Option C on his DD Form 1883, his form was not submitted within the required 90 days. Since his election was not submitted in a timely manner, he was not eligible to elect survivor benefit coverage until applying for retired pay at age 60. Regrettably, he did not live to age 60. However, it appears his DD Form 1883 was accepted and filed by DFAS without informing the FSM that his election was invalid. The U.S. Government's failure to inform the FSM deprived him and his spouse of the opportunity to make other arrangements for her financial security, including missing two open enrollment seasons. 4. Accordingly, it would be equitable to correct the FSM's records to show he submitted his DD Form 1883 on 30 April 1999 within 90 days of receipt of his 20-year letter and it was received and processed by ARPERSCOM (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 on 30 April 1999 within 90 days of receipt of his 20-year letter and it was received and processed by ARPERSCOM (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) AR20150003863 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003863 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1