BOARD DATE: 22 March 2018 DOCKET NUMBER: AR20160002646 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 22 March 2018 DOCKET NUMBER: AR20160002646 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 from service member (FSM), requests correction of her late husband's military records to show he met the requirements for non-regular retired pay. 2. The applicant states she has been denied his pension. Her husband served in the military for 27 years. He only needed 20 years to receive a pension. She was unaware of the procedures for how to proceed with this matter. 3. The applicant provides: * Consent of the Marriage of a Child of Ward certificate * marriage certificate * FSM's death certificate * letter to the Office of Attorney General * letter from the Defense Finance and Accounting Service (DFAS) * two Case Information and Privacy Act Release Forms * two letters to a Member of Congress and the Chief, Soldier Programs and Services Division CONSIDERATION OF EVIDENCE: 1. The FSM was born on 13 February 1943. 2. He enlisted in the U.S. Army Reserve (USAR) on 22 March 1966. He reenlisted in the USAR on 9 July 1978 and 8 January 1984. 3. He and the applicant were married on 25 May 1986. 4. He reenlisted in the USAR on 11 October 1986. 5. On 21 June 1988, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The letter advised him that he was eligible for retired pay, upon application, at age 60 and he was eligible to participate in the Reserve Component Survivor Benefit Plan (RCSBP). 6. He served on active duty in support of Operation Desert Shield/Desert Storm from 1 January 1991 through 18 October 1991 and he was credited with 8 months and 18 days of active service. 7. He reenlisted in the USAR on 12 July 1992. 8. His records contain: a. A DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period from September 1993 through August 1994, showing he was assigned to the 2290th U.S. Army Hospital as a member of the USAR. b. A Chronological Statement of Retirement Points, dated 17 August 1994, showing he was credited with 28 years of qualifying service for non-regular retirement as of 21 March 1994. c. A death certificate, dated 11 April 1995 and DD Form 1300 (Report of Casualty), dated 4 May 1995, showing he died on 11 April 1995, while serving as a member of the USAR. He was 52 years of age at the time of death. d. A letter, dated 29 May 1996, wherein the Director, Soldier and Family Support, advised a Member of Congress that the FSM failed to submit a DD Form 1883 (Survivor Benefit Plan Election Certificate) within the 90-day time period, he died before reaching age 60, and his survivors would not receive an RCSBP annuity under Public Law 95-997. 9. The FSM's record is void of any orders discharging him from the USAR and transferring him to the Retired Reserve. 10. The FSM would have reached age 60 on 13 February 2003. 11. The applicant provides: a. A letter, dated 3 November 2009, wherein the Vice President, Philadelphia Fraternal Order of Police, stated the FSM was a narcotics agent with the Office of Attorney General who was killed in the line of duty and he was requesting health care coverage for the applicant and her family. b. A letter, dated 13 August 2015, wherein DFAS advised the applicant that the FSM was not listed on the military retiree rolls nor was he in receipt of military retired pay. Since her husband died before reaching age 60, his eligibility to receive retired pay terminated on his date of death. c. Two Case Information and Privacy Act Release Forms (self-explanatory). d. A letter, dated 20 October 2015, wherein the U.S. Army Human Resources Command advised a Member of Congress that the applicant was not eligible for RCSBP benefits because the FSM did not complete and return the DD Form 1883 within 90 days of receipt. e. A letter, dated 18 November 2015, wherein the applicant advised the Chief, Soldier Programs and Services Division, of her plight and requested award of a pension from her husband's 27 years of service. REFERENCE: 1. Army Regulation 135-180 (Army National Guard and Army Reserve- Qualifying Service for Retired Pay Nonregular Service), states that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his/her qualifying service as a Reserve Component Soldier. The requirement to serve the last 8 years in a Reserve Component has since been amended to the last 6 years and is currently 0 years. 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. Three options were available: * Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation * Option 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 * Option C: elect that a beneficiary receive an annuity immediately upon their death if before age 60 3. Failure to make an election automatically defaulted to Option A. Furthermore, periodically, Congress passes laws that establish Open Seasons, which allow SBP enrollment by those previously non-participating or changes to coverage amounts by those already participating. For example, Public 101-189, enacted on 29 November 1989, established an Open Season from 1 October 1991-30 September 1992. Public Law 101-510, enacted on 5 November 1990, changed the Open Season period to 1 April 1992-31 March 1993. The Army extensively publicized Open Seasons to ensure all retirees were informed. DISCUSSION: 1. The evidence of record shows the FSM initially enlisted in the USAR on 22 March 1966. He was issued a 20-Year Letter on 21 June 1988 wherein he was advised that he was eligible for retired pay, upon application, at age 60. The evidence of record shows he served through multiple reenlistments in the USAR and was serving in the USAR at the time of his death on 11 April 1995. 2. DFAS verified that there was no retired pay account for the FSM. This meant that the FSM had not applied for nor was he receiving retired pay. He was 52 years of age when he died. He would have been eligible to apply for retired pay upon reaching age 60 on 13 February 2003; however, his eligibility for retired pay terminated on his date of death. 3. The FSM completed over 28 years of qualifying service for retirement; however, he died before reaching age 60 and applying for military retired pay. The FSM did not meet the eligibility requirement for non-regular retired pay established by law. 4. By law and regulation, Soldiers who complete 20 or more years 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 days of receipt. a. The evidence shows the FSM was issued a 20-Year Letter on 21 June 1988. The letter contained an SBP/RCSBP summary. The FSM's records do not indicate that he elected to participate in the RCSBP and the applicant has not provided any evidence showing that he elected to participate in the RCSBP. b. The FSM, by not submitting an SBP election when he received 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, notice to the applicant was not required. Additionally, since he chose to defer his election to age 60, but died prior to age 60, there was no coverage at the time of death. c. Additionally, there had been at least one Open Season prior to the FSM's passing. He could have elected to enroll during the 1 April 1992-31 March 1993 Open Season, but there is no evidence he did so. Because he did not have coverage, the applicant is ineligible for the SBP annuity. There is no evidence of an error or an injustice in this case. BOARD DATE: 22 March 2018 DOCKET NUMBER: AR20160002646 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. 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. //NOTHING FOLLOWS// ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002646 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2