IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150008794 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: 19 April 2016 DOCKET NUMBER: AR20150008794 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 C (immediate coverage) upon receipt of his Twenty-Year Letter * it was received and processed by the appropriate office in a timely manner * paying the applicant the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 20 February 2015, 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. IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150008794 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. The FSM completed 20 years of service for retired pay at age 60. He was not properly counseled by his unit on his [SBP] election options or on the suspense date of 90 days from the date of receipt of his Twenty-Year Letter to make his election in order for her to be eligible for an SBP annuity should something happen to him prior to age 60. b. It cannot be verified exactly when he received the letter which would have established the 90-day suspense. The FSM definitely had intended to apply for a survivor annuity for her as is evidenced by the packet he submitted, signed on 5 December 1999, and mailed to the U.S. Army Human Resources Command (HRC). His records should be corrected to fix the error and allow her to be eligible for what her deceased spouse had intended all along, an SBP annuity in the event something happened to him. He did not apply for retirement benefits as he was only 58 years of age when he passed, he was told he could not apply until he reached age 59. 3. The applicant provides a/an: * letter * Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) * DD Form 1883 (SBP Election Certificate) * Reserve Component Supplemental SBP Election Certificate (RC-SSBP) * two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) * DD Form 214 (Report of Separation from Active Duty) * Army National Guard (ARNG) Current Annual Statement * ARNG Retirement Credits Record * marriage certificate * death certificate * DD Form 2656-7 (Verification for Survivor Annuity), dated 24 March 2015 * Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 24 March 2015 * Financial Management Service (FMS) Form 2231 (Direct Deposit), dated 24 March 2015 * an email, dated 17 April 2015 CONSIDERATION OF EVIDENCE: 1. The FSM was born on 15 November 1956. He enlisted in the ARNG on 1 May 1976. He and the applicant were married on 22 September 1979. 2. The applicant provides a Twenty-Year Letter, prepared on 27 August 1999, wherein the FSM was notified 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 would have 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 a DD Form 1883 the FSM completed on 5 December 1999, wherein he indicated he was married, had dependent children, and was electing SBP for "spouse and children" full coverage under Option C (I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60 (emphasis added). He listed two dependent children born on 10 February 1986 and 3 March 1989, respectively. The FSM and the applicant both signed this form on 5 December 1999. 5. On 21 August 2000, he was honorably released from the ARNG and he was transferred to the Retired Reserve. He completed 21 years of total ARNG service for retired pay. 6. On 19 February 2015, the FSM died at the age of 58. His Certificate of Death, issued on 26 February 2015, shows he was married to the applicant at the time of his death. 7. In a letter to the applicant, undated, the Chief, RC Retirement Branch, HRC, stated the applicant was not eligible for an SBP annuity. By law, the FSM had 90 calendar days from the date he received his [Twenty-Year] Letter to submit a DD Form 1883. If an election was not made within the required 90 calendar days, he would not be entitled to SBP coverage until he applied for retired pay at age 60. Their records indicated he did make an election but it was not done prior to the 90 day suspense, nor did he apply for retired pay. 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. By law and regulation, RC 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. At the time in 1999, the RC Soldier must have made the election within 90 days of receiving the notification. 2. The evidence of record confirms at the time the FSM received his Twenty-Year Letter, he competed DD Form 1883 on 5 December 1999 and indicated he was electing full SBP coverage for spouse and children under Option C, immediate coverage. Although his Twenty-Year Letter was prepared on 27 August 1999, the date the FSM actually received the letter is not known. It is reasonable to presume that he may not have received the letter until 2 weeks after it was prepared, or about 10 September 1999, and his election on 5 December 1999 had been made within the required 90 days. 3. Regardless, if his election was not received within the required timeframe, HRC should have returned the DD Form 1883 to the FSM with notification the election was not valid instead of maintaining the form. Had such action been taken, he would have had the opportunity to make other arrangements for the applicant's financial security rather than relying on a form that was challenged only after it was too late. As a matter of equity, the FSM's records should be corrected to show he submitted his DD Form 1883 in a timely manner. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008794 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008794 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2