IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015165 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015165 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015165 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 daughter of a deceased former service member (FSM), requests correction of his records to show she was entitled to his Survivor Benefit Plan (SBP) annuity upon his death. 2. The applicant states: a. At the time of her father's death, her parents were not married and her father received improper guidance when filling out the DD Form 1883 (SBP Election Certificate) for her as his dependent child. She is asking for an exception to policy for correction from the date of his death to her graduation. Presently, she is a senior in college with a graduation date of May 2016. It is her hope that the Board will take favorable action to award her [the SBP annuity] from the date of his death because it "Taint Fair." b. At the time of her father's death, she was a minor and unable to file on her own behalf. In addition, once she was able to do so, she did and has been seeking guidance on how to do so for the past 4 and 1/2 years. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * DA Form 2-1 (Personnel Qualification Record (PQR)) * DA Form 2A (Automated PQR) * divorce decree * orders, dated 29 June 1995 * Twenty Year Letter * DD Form 1172 (Application for Uniformed Services Identification (ID) Card - Defense Enrollment Eligibility Reporting System (DEERS) Enrollment), dated 25 Marcy 1999 * DD Form 93 (Record of Emergency Data) * DA Form 873 (Certificate of Clearance and/or Security Determination), dated 21 July 2002 * Servicemembers' Group Life Insurance Election and Certificate, dated 12 July 2003 but not signed * birth certificate * Army Reserve Personnel Command (ARPC) Form 249 (Chronological Statement of Retirement Points), dated 28 February 2011 * death certificate * letter to her mother with attachments * driver's license * social security card * University of Pennsylvania ID card * power of attorney, undated and not signed * DD Form 2708 (Child Annuitant's School Certification), dated 7 May 2013 CONSIDERATION OF EVIDENCE: 1. The FSM was born on 13 February 1952. He enlisted in the U.S. Army Reserve (USAR) on 4 March 1977 and served continuously in the USAR throughout several reenlistments and/or extensions. He attained the rank of sergeant first class (SFC)/E-7 on 15 July 1996. 2. The applicant provides: a. A divorce decree, dated 23 April 1987, showing the FSM and his spouse, Jxxxxxe, were divorced on that date. b. A birth certificate, issued 11 January 2011, showing the applicant was born on 21 September 1994 and listing the FSM as her father and Ms. CB as her mother. c. A Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 9 April 1997, issued by the USAR Personnel Center, 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. He was also notified that he was entitled to participate in the Reserve Component SBP (RCSBP) that enabled him to provide an annuity for his spouse and other eligible dependents. 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 survivors would not be entitled to benefits. d. DA Form 2-1, reviewed by the FSM on 6 February 1999, showing his number of dependents as no adults and one child. e. DD Form 93, dated 5 January 2002, wherein the FSM listed he was single and had two children; TMR, born on 6 April 1975; and DS (the applicant), born on 21 September 1994. He listed Ms. CB as his fiancée and named her as the beneficiary for the death gratuity if there was no surviving spouse or child. f. DA Form 2A, issued on 30 January 2003, showing the FSM's marital status as divorced and his number of dependents as two. 3. His record is void of evidence that shows he completed a DD Form 1883 and elected SBP for an insurable interest or his minor child at the time he was issued his Twenty Year Letter. 4. Orders 04-252-00004, dated 8 September 2004, issued by Headquarters, 78th Division, USAR, Edison, NJ, released the FSM from his current assignment and transferred him to the Retired Reserve in the rank of SFC effective 30 September 1994. 5. The FSM died on 29 November 2010 at the age of 58. He was single at the time and Ms. CB was listed on the death certificate as the FSM's registered domestic partner. The applicant was 16 years old and in high school at the time. The applicant's mother subsequently requested entitlement to the survivor annuity as an insurable interest. 6. The applicant provides a letter to her mother, dated 27 June 2011, from the Chief, Retired Pay, U.S. Army Human Resources Command (HRC), stating upon review of the FSM's records HRC found that he did not execute a DD Form 1883. Soldiers are offered the opportunity to participate in the RCSBP upon completion of 20 years of qualifying service. He was mailed the SBP packet but failed to return the DD Form 1883 within the 90 days as prescribed by law. Since he did not elect this plan, no one was entitled to the annuity. 7. The applicant subsequently requested entitlement to the survivor annuity based on the death of the FSM. In a letter, dated 8 October 2013, the Chief, Retired Pay, HRC, stated, in part, by law the FSM had 90 calendar days from the date he received his Twenty Year Letter to submit an SBP Election Certificate. If an election was not made within the required 90 days, he would not be entitled to SBP coverage until he applied for retired pay at age 60. According to HRC records, he never made an election nor applied for retired pay. Therefore, she was not entitled to any benefits and her application was being returned. 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 have waited until he/she applied for retired pay and elected to participate in the standard SBP. 2. Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. This Open Season was extensively publicized in Army Echoes to ensure all retirees were informed of its existence. DISCUSSION: 1. 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. However, it is not a requirement for them to do so. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt of the Twenty-Year Letter. 2. The evidence of record indicates the FSM did not make an election at the time he was issued his Twenty-Year Letter in April 1997 and he effectively deferred his election until age 60. 3. As the FSM died on 29 November 2010 prior to reaching the age of 60 when he would have had the option to elect SBP coverage, there was no SBP coverage at the time of his death. In addition, the FSM had the option to enroll the applicant in the RCSBP during an open season. There is no evidence that he did so. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015165 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015165 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2