IN THE CASE OF: BOARD DATE: 5 April 2016 DOCKET NUMBER: AR20150009385 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 spouse of a deceased former service member (FSM), requests, in effect, that her husband's records be corrected to show that she and her children are entitled to receive a Survivor Benefit Plan (SBP) annuity. 2. The applicant states, in effect, that the FSM was never offered a conscious choice to select or decline SBP benefits. She states that they were married throughout the FSM's military career. She would not have declined SBP benefits because they planned to use the funds in retirement. She adds that she suffers from post-traumatic stress disorder and has trouble with completing military paperwork and entering military facilities (i.e., because of triggering events). 3. The applicant provides copies of: * her certificate of birth * their marriage record * the FSM's certificate of death * DD Form 214 (Certificate of Release or Discharge from Active Duty) * NA (National Archives) Form 13038 (Certification of Military Service) * her United States Uniformed Services Identification (ID) Card * DD Form 2656-7 (Verification for Survivor Annuity) * DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces) * Form W-4P (Withholding Certificate for Pension or Annuity Payments) * Standard Form (SF) 1199A (Direct Deposit Sign-Up Form) * three letters from Colonel (COL) Steve M____, U.S. Army, Retired CONSIDERATION OF EVIDENCE: 1. The FSM was born in February 1957. 2. He was appointed as a Regular Army commissioned officer on 6 June 1979. 3. A DD Form 214 shows he entered active duty on 6 June 1979, was honorably discharged on 7 June 1992, and transferred to the U.S. Army Reserve (USAR) (Reinforcement). He had completed 13 years and 2 days of net active service this period. 4. He was promoted to lieutenant colonel/pay grade O-5 on 29 May 1998. 5. USAR Personnel Command, St. Louis, MO, memorandum, dated 31 August 2000, notified the FSM that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter). Paragraph 4 of the letter shows, "You are entitled to participate in the Reserve Component SBP (RCSBP) established by Public Law 95-397. This plan enables you to provide an annuity for your spouse, and other eligible beneficiaries. By law, you have only 90 calendar days from the date you receive this memo [emphasis in memo] to submit your DD Form 1883, Survivor Benefit Plan – Election Certificate. If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60. If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits. Enclosed is [a] DD Form 1883 and detailed information about RCSBP." 6. USAR Personnel Command, St. Louis, MO, Orders C-06-116374, dated 12 June 2001, reassigned the FSM to the USAR Control Group (Retired Reserve) effective 12 June 2001. 7. A review the FSM's military personnel records failed to reveal evidence of a completed DD Form 1883 or DD Form 2656-5 (RCSBP Election Certificate). 8. In support of her application, the applicant provides the following documents: a. Ohio Department of Health, Division of Vital Statistics, Certificate of Live Birth, that shows the applicant was born in April 1957. b. Probate Court, Miami County, Ohio, Marriage Record, that shows the FSM and applicant married on 1 March 1980. c. Commonwealth of Virginia, Certification of Death, Department of Health, Division of Vital Records – Richmond, that shows the FSM died on 13 October 2011. It also shows he was married at the time of his death and the applicant (Grace S____) is listed as his spouse and as the informant. d. United States Uniformed Services ID Card, with an expiration date of 12 February 2017, issued to the applicant as a dependent beneficiary based on the FSM's military service. e. DD Form 2656-7, DD Form 2790, Form W-4P, and SF 1199A, all dated 15 March 2014, submitted by the applicant in support of her request for RCSBP with spouse and children coverage. f. Three letters written by COL Steve M____, U.S. Army (Retired), in support of the applicant's request for SBP, dated March 2013, 18 May 2015, and 9 June 2015. COL M____ states that he was best friends with the FSM and they often discussed their preparation plans for retirement. He states the FSM told him on several occasions he had elected SBP for his family as part of his estate plan. (1) COL M____ states the FSM became eligible for SBP under an older SBP system that required election of SBP in writing after receiving a 20-Year letter. He also states, "[The FSM] completed his service a year later, when SBP was automatically given, unless specifically turned down in writing, due to a major change to SBP laws." He adds, "I do not believe he was given an opportunity to elect SBP when he crossed his 20 year point, then under the new rules would not have been given a chance to either select or not select SBP when he retired." (2) COL M___ offers his experience of late receipt of his 20-Year letter and suggests the FSM was in a similar situation and that it adversely affected the FSM's opportunity to elect SBP in a timely manner. (3) In support of his argument regarding the untimely administrative processing of personnel actions, he provides anecdotal information regarding the presentation to the applicant of the FSM's previously approved retirement award at the FSM's funeral. (4) COL M___ states he has been in contact with a representative at the U.S. Army Human Resources Command (HRC), on behalf of the applicant, who has provided them information and assistance. He provides copies of all previous documents forwarded on behalf of the applicant. 9. A further review of the FSM's military personnel record maintained in the HRC Integrated Web System, in pertinent part, shows an SBP packet was received from the applicant on 11 April 2014. An HRC representative entered a notation that a letter denying the request for SBP was mailed to her on 23 July 2014. 10. In connection with the processing of this case, the Defense Finance Accounting Service (DFAS) was asked to verify information relevant to the FSM's SBP election, coverage, and participation. A DFAS official reported DFAS does not have any information pertaining to the FSM's SBP enrollment. 11. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Retiring members and spouses were to be informed of the SBP options and effects. 12. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies 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 the service member's 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 applies for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of Option A. 13. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of Option C. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that the FSM's records should be corrected to show he elected the RCSBP with Option C (Immediate) for spouse and children coverage based on full retired pay. 2. Records show the FSM was notified on 31 August 2000 that he had completed 20 years of creditable service for retired pay at age 60. He was also informed of his entitlement to participate in the RCSBP and that he had 90 calendar days to submit his RCSBP election. a. There is no evidence of record that shows the FSM elected RCSBP coverage at that time. b. In the absence of an RCSBP election, the law in effect at the time required a default election of Option A (decline enrollment and choose at age 60 whether to start RCSBP participation). c. The sincerity of COL M____'s comments is not in dispute. However, his comments offer insufficient evidence to support the applicant's claim to SBP. d. The evidence of record shows Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. However, the law was applicable to cases pertaining to 20-year letters issued after 1 January 2001. 3. The FSM transferred to the USAR Control Group (Retired Reserve) on 12 June 2001. He died on 13 October 2011; at the time he was 54 years of age. 4. The evidence of record shows the FSM did not have RCSBP coverage. 5. Regrettably, based on the evidence of record, the applicant is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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) AR20150008545 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150009385 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1