IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008660 BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008660 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 former service member be corrected by showing he elected the Reserve Component Survivor Benefit Program (RCSBP) for "spouse and children," Option 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), it was received and processed by the appropriate office in a timely manner, and paying the applicant the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 5 March 2013, the day after her late husband died. __________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. Enclosure 1 IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008660 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 entitlement to his Survivor Benefit Plan (SBP) annuity. 2. The applicant states: a. On DD Form 1883 (SBP Election Certificate) the election for the SBP is marked for Option A (elect to decline enrollment and choose at age 60 whether to start SBP participation). This was marked [by the FSM] in 1998 when he received his Twenty-Year Letter. At that time, they were both working and did not feel there was a need for the additional payment. They also thought he would be given another opportunity to change his election when he was eligible for retirement. However, when he retired from the Alabama Army National Guard (ALARNG) in 2004, he was not given the opportunity to change his election. b. She believes she should be entitled to his SBP annuity because the DD Form 1883 was not properly explained to either of them. Why would he have deferred or refused a benefit which did not become payable until he turned 60 years of age? In her deceased husband’s will, dated 19 February 2003, there is the statement "I specifically request that my personal representative consult with a retired affairs officer at the nearest military installation." If there had not been a presumption of some type of military benefits, why would this language appear? 3. The applicant provides a letter, death certificate, page 1 of DD Form 1883, Reserve Component Supplemental Survivor Benefit Plan (RC-SSBP) Election Certificate, orders, ARNG Retirement Points History Statement, a will, and an affidavit. CONSIDERATION OF EVIDENCE: 1. The FSM was born on 9 January 1955. He enlisted in the ALARNG on 15 February 1975. He and the applicant were married on 10 August 1991. 2. On or about 30 December 1997, by memorandum, the ARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). This memorandum notified the FSM that he had completed at least 20 years of qualifying service and would be eligible for retired pay upon application at age 60. 3. Enclosed with this letter was an SBP Summary which notified the FSM that he was entitled to participate in the RCSBP and that by law he had 90 calendar days from the date he received the letter to submit his SBP Election Certificate. If he did not elect coverage, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60, and should he die before age 60, his survivor would not be entitled to benefits. 4. The applicant provides and the FSM’s records contain: a. A DD Form 1883 the FSM completed on 10 January 1998, wherein he indicated he was married, had dependent children, and was electing SBP for "spouse and children" (emphasis added). In item 9c of this form, he checked the box to show he was electing RCSBP under Option A. The second page of this form contained explanations for each option and stated, in part, "Option A - I decline to make an election at this time (I will remain eligible to make an election for coverage at age 60)." The FSM signed this form on 10 January 1998 and the applicant signed the form 11 January 1998. b. An RC-SSBP Election Certificate the FSM completed on 10 January 1998, wherein he checked the appropriate block to show he declined to elect coverage under the RC-SSBP. He signed this form on 10 January 1998. 5. The applicant provides the FSM’s Last Will and Testament, dated 19 February 2003, wherein it stated that he requested his personal representative consult with a retired affairs officer at the nearest military installation, the Department of Veterans Affairs, and the Social Security Administration. 6. Orders 310-541, dated 5 November 2004, issued by the Joint Force Headquarters, ALARNG, discharged him from the ALARNG and transferred him to the Retired Reserve effective 13 September 2004. 7. On 4 March 2013, the FSM died at the age of 58. His Certificate of Death, dated 12 March 2013, shows he was married to the applicant at the time of his death. 8. In a letter to the applicant, dated 5 December 2014, the Chief, Reserve Component Retirement Branch, U.S. Army Human Resources Command, stated she was not eligible for an SBP annuity. Their records indicated her deceased spouse had not made an RCSBP election. She was advised to apply to the Army Board for Correction of Military Records for review of her case. REFERENCES: 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. 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 wait until he/she applied for retired pay and elected to participate in the standard SBP and reaches 60 years of age. DISCUSSION: 1. The applicant contends she should be entitled to an SBP annuity based on the death of her spouse as the RCSBP election options on DD Form 1883 were not properly explained to either of them. Her contention was carefully considered and was found to have merit. 2. By law and regulation, Reserve Component Soldiers who completed at least 20 years of qualifying service are issued a Twenty-Year Letter that informs them of their retirement eligibility and they are offered the opportunity to enroll in the RCSBP. 3. The evidence of record shows at the time the FSM received his Twenty-Year Letter, he competed the DD Form 1883 and indicated he was electing full SBP coverage for spouse and children but was deferring his election until age 60. This form is facially inconsistent. If he was electing full SBP coverage for spouse and children, he would have been either electing immediate coverage or coverage that would have begun on what would have been his 60th birthday. 4. The decision to defer delays both election of beneficiary (ies) and amounts. In addition, the government officials who received and processed the form should have noted the inconsistency and returned the form seeking clarification. 5. It is reasonable to presume that the FSM misconstrued his election options and intended to elect full SBP coverage for spouse and children under Option B – elect that a beneficiary receive an annuity if the FSM dies before age 60 but delay payment of it until the date of the member’s 60th birthday. As a matter of equity, it would be appropriate to show that he did so. The FSM died on 4 March 2013 at the age of 58 and would have been reached age 60 on 5 January 2015. //NOTHING FOLLOWS// ABCMR Record of Proceedings @#!CASENUMBER Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150008660 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2