BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014785 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: 26 January 2017 DOCKET NUMBER: AR20150014785 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 the Former Service Member received his Twenty-Year Letter after 9 January 2001 resulting in the default election of the Survivor Benefit Plan (SBP) Option C * paying the applicant the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 2 August 2010, the day after her 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. BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014785 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 reconsideration of her previous request for correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for her. 2. The applicant states, in effect, she is providing a new argument that was not previously considered. 3. The applicant provides: * orders, dated 9 August 2005 * Army National Guard (ARNG) Retirement Points History Statement, dated 25 October 2005 * DD Form 2656-5 (Reserve Component SBP (RCSBP) Election Certificate) * certificate of death CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110001656, on 4 August 2011. 2. As a new argument, the applicant states: a. The FSM began his military career in May 1980 and ended his career in February 2005 due to medical reasons; he passed away on 1 August 2010. She would like the Department of the Army to accept the DD Form 2656-5 in place of the DD Form 1883 (SBP Election Certificate). Without this change, she is not eligible for the SBP annuity based on his years of service. b. She has done research and since her husband should have gotten his Twenty-Year Letter in 2000, he should have turned in a DD Form 1883. She has looked for this document in his military records but cannot find it. State Headquarters told her that she needs a DD Form 2656-5 signed and notarized and without it they cannot help her but this form was not implemented until October 2002. Since her husband's death in 2010 was before his 60th birthday, she is unsure of what to do. He served his country for over 24 years without one bad year. She would like a solid answer on what the next step is to help support her family without him. Over the last few years, she has reached out to many military offices but received conflicting information. c. She first started this process in September 2010, after her husband's death. She assumed everything was in order as he took care of anything to do with the military and it was very new to her. She called the number he told her to call if something happened to him but she kept getting transferred to other numbers or told they could not help and to try another number. She just could not tie up her work phone or stay on her cell phone for a long time during working hours. d. After many tries, she finally found someone to help her. She submitted the documents requested and did include DD Form 1883 but was told that DD Form 1883 was not acceptable because of no election. She was told she was not eligible for the SBP without the DD Form 1883; she was then told there was no record of her deceased husband's retirement records. She gave up and started working a second job; however, for her own peace of mind she needs to finish this last piece and lay it to rest. Her husband would want her to pursue it to the end and she felt it was not right since he served his country for over 24 years. 3. The FSM was born on 18 May 1961. He and the applicant were married on 15 September 1989. 4. Having had prior service in the U.S. Air Force Reserve, the FSM enlisted in the Missouri ARNG (MOARNG) on 29 June 1992. He was assigned to the 635th Military Intelligence (MI) Battalion (BN), Kansas City, MO. 5. His record contains a memorandum, dated 23 June 2000, subject: Notification of Eligibility for Retired Pay at Age 60, issued by Department of the Army and the Air Force, Headquarters, MOARNG, Jefferson City, MO, through the Commander, 635th MI BN, notifying 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 (Twenty-Year Letter). Although this memorandum is dated 23 June 2000, it contains a date stamp showing it was received at the MOARNG Enlisted Personnel section on 9 January 2001 (emphasis added). 6. 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 Twenty-Year 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. 7. On 18 April 2003, the FSM was promoted to sergeant first class (SFC)/E-7. 8. He was honorably released from the ARNG on 11 February 2005 in the rank of SFC and he was transferred to the Retired Reserve. He was credited with 24 years, 8 months, and 29 days of service for retired pay at age 60. 9. The FSM died on 1 August 2010 at the age of 49. He was married to the applicant at the time. 10. In a letter to the applicant, dated 30 November 2010, the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), notified her that upon review of the FSM's file, HRC found that he had not completed a DD Form 1883. Therefore, she was ineligible to receive the survivor benefit annuity. 11. The applicant provides a DD Form 2656-5 showing: a. The FSM and the applicant signed the form on 13 April 2005, the witness to his signature signed the form on 12 February 2015, and the form was notarized on 27 February 2015. b. The FSM indicated he was married to the applicant at the time and had one son. He was electing RCSBP Option B (Deferred Annuity - I elect to provide an annuity beginning on the 60th anniversary of my birth should I die before that date, or on the day after date of death should I die on or after my 60th birthday). He was electing spouse only coverage based on full retired pay and declined supplemental coverage. 12. The FSM was 44 years of age on 13 April 2005 and would have reached age 60 on 18 May 2021. REFERENCES: 1. 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 reached 60 years of age. 2. 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 Twenty-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: 1. By law and regulation, Reserve Component (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. However, it is not a requirement for them to do so. The law in effect prior to 1 January 2001 required the Soldier to make an election and return the enrollment form within 90 days of receipt of the Twenty-Year Letter. 2. However under the law enacted on 30 October 2000, written spousal consent was required for a RC Soldier to be able to delay making an RCSBP election until age 60 and failure to elect an option resulted in the default election of Option C. Although the law was applicable to Twenty-Year Letters issued after 1 January 2001, in the months following the passage of the law there was much confusion as to when a RC Soldier was required to have spousal consent. 3. While the FSM's Twenty-Year Letter is dated 23 June 2000, it is unknown when he actually received the letter. The date stamp on the letter shows it was received at the MOARNG Enlisted Personnel section on 9 January 2001. It is reasonable to presume it was then forwarded to the FSM after this date for his notification. As the date would have been after the effective date of Public Law 106-398, the FSM's failure to make an election would have automatically resulted in the election of Option C - that a beneficiary receive an annuity immediately upon their death if before age 60. 4. Correcting the record to show the FSM received his Twenty-Year Letter after 9 January 2001 would have the effect of making the applicant eligible for the 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) AR20150014785 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014785 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2