BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012614 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 BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012614 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends the Department of the Army records of the individual concerned be corrected by showing: * the FSM made an RCSBP election (DD Form 1883) for coverage of spouse and children, based on the full amount, the day after the date of his 20-year letter * DFAS received his DD Form 1883 in a timely manner, and accepted and processed it as required by law and regulation * the applicant signed a DD Form 2656-7 the day following the death of the FSM * DFAS received the applicant's DD Form 2656-7 in a timely manner, and accepted and processed it as required by law and regulation * the spouse is entitled to payment of the SBP annuity retroactive to 30 July 2013, subject to the applicant's submission of required substantiating documents ___________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. BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012614 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 correction of the FSM's records to show that she is entitled to a Reserve Component Survivor Benefit Plan (RCSBP) annuity. 2. The applicant states, in effect: * her husband was a member of the Missouri Army National Guard (MOARNG) * on 8 April 2000, the MOARNG generated his Notification of Eligibility (NOE) for Retired Pay at Age 60 (20-Year Letter) * On 17 July 2000, the FSM signed his DD Form 1883 (Survivor Benefit Plan Election Certificate) (100 days after the 20-Year Letter was generated) * the FSM met the requirement of signing the DD Form 1883 within 90 days of the notification receipt date, she believes she is eligible for the RCSBP annuity 3. The applicant provides: * Standard Form 180 (Request Pertaining to Military Records), dated 21 July 2015 * Memorandum for Record (MFR), dated 17 July 2015 * two ARNG Retirement Points Statements - Soldier Detail Reports, both dated 16 July 2015 * Orders Number 110-069, dated 19 April 2000 * 20-Year Letter, dated 8 April 2000 * ARNG Retirement Points History Statement, dated 12 April 2001 * DD Form 1883, dated 17 July 2000 * marriage certificate * death certificate * DD Form 2656-7 (Verification for Survivor Annuity), dated 17 June 2015 * social security card * Financial Management Service (FMS) 2231 (Fast Start Direct Deposit), dated 19 June 2015 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 31 January 2001 * Orders Number 055-027, dated 24 February 2001 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 August 1989 * letter, dated 30 June 2015, to the applicant from the U.S. Army Human Resources Command (HRC) CONSIDERATION OF EVIDENCE: 1. The FSM was born on 25 May 1961. He married Kimberlee, the applicant, on 11 May 1984. He would have turned 60 years of age on 25 May 2021. 2. Having had prior enlisted service in the U.S. Navy, the FSM enlisted in the MOARNG on 5 October 1989. He served continuously through reenlistments and extensions, and rose to the rank/grade of sergeant/E-5. 3. On 8 April 2000, the MOARNG provided the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 4. While an SBP Summary is listed as an enclosure, there are no specific instructions in the body of the letter with regard to the completion of the DD Form 1883, nor does the letter state, by law, the election must be made within 90 calendar days of receipt. 5. On 17 July 2000, the FSM signed his DD Form 1883. a. He acknowledged that he was married and had two children (Heather, born in 1981 and Lucas, born in 1989). This form shows the applicant is his spouse. b. He elected Full RCSBP coverage for his spouse and children, and chose Option C (Immediate Coverage). 6. His NGB Form 22 shows he was honorably discharged from the MOARNG, and transferred to the Retired Reserve on 1 January 2001. 7. He died on 30 July 2013. His death certificate indicates he was married to the applicant at the time of his death. He was 52 years of age. 8. In a letter, dated 30 June 2015, an official HRC advised the applicant that she was not eligible for RCSBP benefits based on the FSM's military service. She was further advised that: a. The RCSBP was enacted by Public Law 95-397, and was established to provide an annuity for the spouse or other eligible beneficiaries for Reserve Soldiers or former Soldiers who have completed 20 qualifying years of service for retired pay at age 60. By law, the FSM had 90 calendar days from the date he received his letter to submit an SBP Election Certificate (DD Form 1883). If an election was not made within the required 90 calendar days, the FSM would not be entitled to SBP coverage until he applied for retired pay at age 60. b. According to HRC's records, the FSM did make an election, but it was not done prior to the 90-day suspense, nor did he apply for retired pay. As such, the applicant was not entitled to any benefits. c. She could apply to this Board to have her case reviewed. The Board was established for the express purpose of considering the existence of error or injustice, and to make appropriate recommendations for corrective actions. 9. The applicant provides an MFR, dated 17 July 2015, Subject: Issue of the 20-Year NOE with Completion of the RCSBP Election for [the applicant], the spouse of [the FSM], prepared by the MOARNG Retirement Services Officer. The MFR essentially states: * on 8 April 2000, the Adjutant General of the MOARNG created the 20-Year NOE for the FSM; they had to wait for the Director of Personnel to sign the letter, which could have taken anywhere from 1 to 2 weeks * once the letter was signed, it would have been placed with other RCSBP documents; in accordance with mail procedures in effect in 2000, and to save postage, the 20-Year Letter would have been mailed from the MOARNG headquarters to the 70th Troop Command (the FSM's higher headquarters) on Tuesdays and Thursdays * on receipt, the 70th Troop Command would have then mailed the document to the battalion headquarters * lastly, the battalion headquarters would have mailed the 20-Year Letter with RCSBP correspondence to the FSM's unit * units would typically hold the 20-Year Letter and RCSBP correspondence until the next unit drill assembly, at which time, the eligible Soldier would sign for the RCSBP on the 20-Year Letter receipt * after researching the FSM's unit's archived files, the FSM's signed receipt of the 20-year Letter with RCSBP documentation could not be located * the FSM's Retirement Points Statement was also reviewed for unit drill dates * a unit drill occurred on 1 and 2 April 2000, which was days before the letter was generated * the FSM's unit participated in Annual Training in Kaiserslautern, Germany from 29 April 2000 to 20 May 2000 * on their return, Soldiers were required to put all equipment back in the Armory, and were then released; they would not have been held for the distribution of mail (such as the 20-Year Letter) * the next scheduled drill was not until 24 June 2000; the FSM likely signed for his 20-Year Letter and the RCSBP documentation that weekend; given this, the 90-day time period would have started on 24 June 2000 [the requirement is to make an election within 90 days of receipt] * based on the processes and events that took place during this timeframe, the FSM most likely completed his DD Form 1883 within the 90-day suspense REFERENCES: 1. 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. 2. 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. a. Three options were available; (1) Option A - decline enrollment and choose at age 60 whether to start SBP participation; (2) Option B - have 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; or (3) Option C - have a beneficiary receive an annuity immediately upon their death if before age 60. b. At the time, a member must have made the election within 90 days of being provided the notification of eligibility to receive retired pay at age 60 or deferred election until he applied for retired pay and elected to participate in the standard SBP. 3. Title 10, U.S. Code, section 1447, chapter 73, defines a dependent child as being: a. Unmarried; b. Under the age of 18 years, or at least 18, but under 22 years of age, if pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, university, or comparable recognized educational institution, or; c. Incapable of self-support because of a mental or physical incapacity existing before the person's 18th birthday, or incurred on or after that birthday, but before the person's 22nd birthday, while pursuing such a full-time course of study or training; and d. Is the child of a person to whom SBP applies, including an adopted child, a step-child, foster child, or recognized natural child who lived with that person in a regular parent-child relationship. DISCUSSION: 1. The applicant requests entitlement to her deceased husband's RCSBP annuity. The FSM completed a DD Form 1883 reflecting full and immediate coverage for his spouse (the applicant) and children. The election was not signed, however, until 100 days after the 20-Year Letter was generated. a. An official from HRC indicated the applicant was not eligible because the DD Form 1883 was not signed within the 90-day time limit established by law; and b. The MOARNG Retirement Services Officer, however, provides a compelling timeline that supports the FSM may likely have received his 20-Year Letter with the RCSBP election on or about 24 June 2000 (78 days after the 20-Year Letter was generated). (1) The requirement by law was not to make an election within 90 days of the 20-Year Letter, but 90 days from receipt of the letter. Implicit in this language is an apparent awareness on Congress' part that delays in the receipt of the letter were to be expected. (2) The 20-Year Letter did not include any specific instructions with regard to the completion of the RCSBP election. This suggests the MOARNG may not have been aware of the law's time requirements, and, thus, may not have ensured there was sufficient notice to their subordinate units of the 90-day suspense. 2. In addition to the name of the applicant, the DD Form 1883 lists their children as eligible beneficiaries. It appears their children lost their eligibility either when they turned 18 years of age (for the youngest child, this would have been in 2007) or at age 22 (in 2011, if he was attending college or a vocational school). There is also no indication either child's eligibility was extended due to an inability to be self-supporting based on a mental or physical incapacity. 3. Based on the foregoing, and as a matter of equity, it would be appropriate to show the applicant as being entitled to receive the FSM's RCSBP annuity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012614 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012614 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2