BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015782 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 BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015782 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. BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015782 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 requests, in effect, reconsideration of an earlier application and payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM). 2. The applicant states, in effect, she was the FSM's spouse for 38 years. During her marriage to the FSM, she was a part of the Army National Guard family until his death on 23 July 2001. Moreover, he died with the conviction that she would receive the SBP benefit. The SBP would be her only source of income. She trusts in the humanitarian consideration of the Army Board for Correction of Military Records (ABCMR) since there is no other recourse available. She previously requested action from the Board in October 2001; however, she never received a copy of the Board's final decision. 3. The applicant provides: * Certification of Marriage * Chronological Statement of Retirement Points * Orders C-05-317300 * Certification of Death * two letters * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) * NGB Form Letter 3 (Notification of Eligibility for Retired Pay at Age 60) 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 AR2001064315 on 15 January 2002. 2. The applicant presents a new argument that the personnel officers did not advise or orient her husband to complete the DD Form 1883 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate. 3. The FSM's death certificate shows he was born on 4 September 1944. [His military records show two different birth dates.] 4. The FSM married Milagros, the applicant, on 28 December 1963. 5. The FSM enlisted in the Army National Guard (ARNG) on 2 February 1969. He served the ARNG and U.S. Army Reserve (USAR) in a variety of assignments and ultimately held the rank/grade of master sergeant/E-8. 6. On 30 October 1984, the National Guard Bureau issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application. Enclosed in this letter was the Survivor Benefit Plan Summary. 7. There is no indication the FSM made an election within 90 days of receipt of his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). Furthermore, officials at the Defense Finance and Accounting Service (DFAS) confirmed by email, dated 12 July 2016, that no SBP election is on file at DFAS. 8. On 10 May 1993, the USAR Personnel Center published orders reassigning the FSM to the Retired Reserve effective 15 May 1993. 9. The FSM died on 23 July 2001 prior to his 60th birthdate. His death certificate shows he was married and lists the applicant as his spouse. 10. In a letter dated 10 August 2001, an official from USAR Personnel Command notified the applicant she was not eligible for RCSBP because the FSM had not submitted a DD Form 1883. The letter also informs her that the FSM was mailed an SBP packet; however, he did not return the DD Form 1883 within the 90 days as prescribed by law. 11. The applicant provides: a. A copy of DD Form 149 dated 3 October 2001, essentially requesting what is before the Board today. b. A letter dated 14 November 2001, issued by the Chief, Support Division, St. Louis, Army Review Boards Agency Support Division acknowledging receipt of her DD Form 149 on behalf of the FSM. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. 2. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60. a. Three options are 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 receiving the notification of eligibility to receive retired pay at age 60 or deferred their election until he applied for retired pay and elected to participate in the standard SBP. 3. Title 10, U.S. Code, section 1331, chapter 1223, details the requirements to receive retired pay for Non-Regular (Reserve Component) service. Upon meeting eligibility requirements, the service member must apply for retired pay. This eligibility extends only to the service member, and, by implication, no one other than that service member can apply for Non-Regular retired pay. 4. 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: 1. By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt. The FSM's records do not indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter in October 1984. 2. The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60. As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, at the time, the law did not require notice to the spouse. Additionally, he chose to defer his election to age 60 but died before reaching age 60; as such, there was no coverage at the time of his death. 3. Enrollment in and disenrollment from the RCSBP/SBP are personal decisions made by the Soldier. The FSM knew the implications of not making an election within 90 days of receiving his 20-year letter because the provided information informed him so. The 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. Regretfully, there is insufficient evidence to show the FSM made an RCSBP election and he died prior to reaching age 60. Unfortunately, the applicant does not qualify for the SBP annuity under the applicable provisions of Public Law or Title 10 of the U.S. Code. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015782 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015782 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2