BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150007116 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 requests, in effect, correction of the record of her deceased husband, a former service member (FSM), to show he made a timely election for Reserve Component Survivor Benefit Plan (RCSBP) coverage. 2. The applicant states, in effect, that: a. After the FSM passed away, she received a letter stating she was not eligible for an RCSBP annuity because the FSM’s RCSBP election form had not been submitted within the 90-day window following his receipt of notification of eligibility (NOE) for retired pay upon reaching age 60 (20-year letter). b. When the FSM was originally sent his 20-year letter on or about 30 July 1997, they had moved and a fire destroyed his copies of the document. c. The FSM’s unit submitted a letter requesting an extension on behalf of the member for RCSBP due to the extenuating circumstances. The FSM immediately submitted a RCSBP election and assumed it was approved since they never received a letter denying the request. d. She is already dealing with the death of her husband and now is struggling financially without the RCSBP annuity that the FSM signed up for on 29 June 1998. 3. The applicant provides: * U.S. Army Human Resources Command (HRC) letter, dated 2 March 2015 * 760th Engineer Company (Combat Support Equipment) Memorandum, Subject: Request for Retirement Election Packet dated 1 May 1998 * DD Form 1883 (SBP Election Certificate) dated 29 June 1998 * HRC letter dated 24 October 2014 * Commonwealth of Virginia Marriage Register * Form W-4P (Withholding Certificate for Pensions or Annuity Payment) dated 24 October 2014 * DD Form 2656-7 (RCSBP) * Standard Form 1199A (Direct Deposit Sign-up Form) * Commonwealth of Virginia – Certificate of Death dated 31 December 2013 * HRC Form 249-E (Chronological Statement of Retirement Points) * NOE dated 23 July 1997 CONSIDERATION OF EVIDENCE: 1. The FSM had prior enlisted service in the Air Force. 2. The FSM enlisted in the U.S. Army Reserve (USAR) on 19 July 1981. 3. The applicant and the FSM were married on 31 December 1987. 4. On 23 July 1997, the U.S. Army Reserve Personnel Center issued a memorandum to the FSM, Subject: NOE for Retired Pay at Age 60 (20-year letter). The memorandum stated “BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS LETTER TO SUBMIT YOUR SBP ELECTION CERTIFICATE (DD FORM 1883).” 5. Effective 1 May 2004, he transferred to the Retired Reserve. 6. The applicant provides a copy of the FSM’s Certificate of Death showing he died on 22 December 2013. The document lists the applicant as his surviving spouse. 7. The applicant provides several other documents in support of her request. a. A letter from the FSM’s unit, the 760th Engineer Company (Combat Support Equipment), in Marion, VA, dated 1 May 1998, which appears to be addressed to HRC, which stated, the FSM “received his 20 Year Letter for retirement purposes on or about 30 July 1997. Unfortunately, through the course of a family move, his retirement option pack was lost. Due to this, [the applicant] has not been able to select his preference of options. Request [applicant] be furnished another option election packet to enable him to apply for his earned retirement in the proper manner. Realizing this action is outside the normal 90 day election period afforded, this request will need to be an exception to your normal policy for retirement options election. [The applicant] is currently a valuable member of this Troop Program Unit and is deserving of special consideration.” b. A DD Form 1883 signed by the FSM on 29 June 1998 shows he elected full RCSBP coverage for spouse and children and Option C (immediate coverage). c. A letter, dated 2 March 2015, from the Chief, Reserve Component Retirement Branch, HRC, informed the applicant that she was not entitled to an RCSBP annuity because the FSM had not submitted an RCSBP election within 90 calendar days of receipt of his 20-year letter. 8. 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. At the time, a member must have made the election within 90 days of receiving the notification of eligibility (emphasis added) to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. DISCUSSION AND CONCLUSIONS: 1. The FSM's 20-year letter was prepared on 23 July 1997, but the evidence of record shows due to a fire and a change of address, the FSM did not received his NOE letter and RCSBP election packet until after the 90-day election period had already expired. 2. It appears that the FSM’s command submitted a request to HRC on 1 May 1998 for an exception to policy to allow the member to submit a DD Form 1883, electing RCSBP coverage due to his extenuating circumstances. 3. On 29 June 1998, within 90 days of the request for an ETP, the FSM submitted a request for RCSBP coverage for spouse and children at full coverage, Option C. 4. It is reasonable to presume that since neither the FSM nor the applicant heard anything back from HRC or their command denying their request, they assumed their request was approved. 5. In light of the available evidence, it would be appropriate to correct the FSM's record to show his RCSBP election was made and processed in a timely fashion after the issue date of his 20-year letter and paying the applicant the RCSBP annuity in accordance with his election effective the day after his death. 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 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 he submitted his properly-prepared RCSBP election for spouse and children coverage, full base amount, Option C, in a timely manner (on 24 July 1997, within 90 days of receiving his 20-year letter as required by law) and paying the applicant the RCSBP annuity in accordance with his election effective the day after his death. _______ _ 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) AR20130011539 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007116 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1