BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160004633 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: 15 November 2017 DOCKET NUMBER: AR20160004633 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: 15 November 2017 DOCKET NUMBER: AR20160004633 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 former service member (FSM), requests, in effect, correction of the FSM's records to show she is eligible to receive a Survivor Benefit Plan (SBP) annuity. 2. The applicant states: a. Her late husband joined the U.S. Air Force Reserve in 1977; he served in Michigan and Mississippi. He transferred to the Oklahoma Army National Guard (ARNG) and then to the Kansas ARNG. He served in full-time positions in both Oklahoma and Kansas. b. He served as an enlisted person for most of his years in the military, but he also went through Officer Candidate School in 1986 and served as an officer for a few years. c. He transferred to the Kansas ARNG in late 1996 or early 1997, right around the time he was eligible for his 20-year letter. d. He was mobilized in 2005 and served on active duty in Iraq for approximately 18 months. He returned to a Wounded Warrior Program in Kentucky, then resumed serving in Kansas. e. He died on 18 December 2013 at age 55. The Department of Veterans Affairs later determined his death was 100-percent service-connected and she is receiving Dependency and Indemnity Compensation effective 1 March 2015. f. Their marriage occurred in 1982, 5 years into his 36-year enlistment. g. His official documents may have been lost or completed in error during the multiple transitions during his 36 years of military service. Major examples of these errors include: (1) She has a DD Form 363A (Certificate of Retirement) signed by the Chief of Staff of the Army in her possession, certifying that her late husband was retired by the U.S. Army on 30 September 2012. This did not occur and he was still serving in the Kansas ARNG on the date of his death in 2013. (2) She has a National Guard Bureau Form 23B (ARNG Retirement Points History Statement), documenting his highest grade held as sergeant first class/E-7. This is inaccurate as he served as a lieutenant in the Oklahoma ARNG, beginning in 1987. h. She has been told that her late husband did not make an election, nor did he apply for retired pay, making her ineligible for survivor benefits according to their records. She requests a complete review and search of his records to account for the Reserve Component Survivor Benefit Plan (RCSBP) election. i. She believes her late husband left for Iraq with the secure knowledge that she would be eligible for survivor benefits in the event of his death. j. She believes her late husband completed a DD Form 1883 (SBP Election Certificate), electing spousal coverage either at the time of receipt of his 20-year letter or in 2003 when it would have been re-offered to him. She has never seen nor signed any document of spousal concurrence to forfeited survivor benefits in 1999, 2003, or 2005 when he went to Iraq. She believes the document existed and was lost at some point. k. She also believes the intent of laws passed regarding survivor benefits for retired pay were to protect the spouse and not punish the spouse in the event of such occurrences. 3. The applicant provides: * letter from the U.S. Army Human Resources Command, dated 9 December 2014 * Kansas ARNG memorandum, dated 22 January 1999, subject: Transmittal of Notification of Eligibility for Retired Pay at Age 60 (FSM) * FSM's Army National Guard (ARNG) Retirement Points History Statement * FSM's Certificate of Retirement * FSM's death certificate CONSIDERATION OF EVIDENCE: 1. The FSM was born on 27 June 1958. 2. The date of their marriage is unknown, but the applicant contends they married in 1982. 3. Having prior enlisted service in the U.S. Air Force Reserve, U.S. Air Force, and ARNG, the FSM was commissioned as a second lieutenant in the ARNG on 2 August 1987. On 20 August 1990, he was released from the ARNG in the rank of first lieutenant to enlist in the ARNG. He enlisted in the ARNG on 21 August 1990. 4. The applicant provided a memorandum from the Director of Personnel, National Guard of Kansas, to the Commander, Battery C, 1st Battalion, 161st Field Artillery, Wichita, Kansas, dated 22 January 1999, stating the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter) was transmitted for acknowledgment of the letter and completion of the DD Form 1883. The enclosures to this memorandum included the 20-year letter and DD Form 1883. 5. The FSM's 20-year letter is not in his available records. 6. There is no evidence showing the FSM made an RCSBP election. 7. He was promoted to sergeant first class effective 1 June 2005. 8. He was ordered to active duty on 6 September 2005 in support of Operation Enduring Freedom. He served in Iraq from 2 April 2006 to 14 July 2007. On 4 October 2008, he was released from active duty. 9. The FSM died on 18 December 2013 at age 55. His death certificate shows he was married to the applicant at the time of his death. 10. On 9 December 2014, the Chief, Reserve Component Retirements Branch, U.S. Army Human Resources Command, denied the applicant's request for the survivor benefit annuity because the FSM did not make an RCSBP election within 90 calendar days from the date he received his 20-year letter. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. 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. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. Three options are available: a. elect to decline enrollment and choose at age 60 whether to participate in the SBP; b. elect that a beneficiary receive an annuity if they die before age 60 but delay payment until the date of the member's 60th birthday; and c. elect that a beneficiary receive an annuity immediately upon their death if before age 60. 3. 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 were issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his or her 20-year letter. DISCUSSION: 1. The applicant's contentions were carefully considered. 2. Before the law was amended in October 2000, 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 or she applied for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of option A to decline enrollment and choose at age 60 whether to elect SBP participation. The applicant has not provided any evidence from the Kansas ARNG regarding what, if any, response her husband submitted in response to his 22 January 1999 Notification of Eligibility for Retired Pay. 3. The evidence of record does not show the FSM made an RCSBP election within the required 90-day time frame in 1999, thus resulting in his deferral until he applied for retired pay at age 60. At the time of his death he was not yet entitled to elect SBP coverage. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004633 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004633 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2