IN THE CASE OF: BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160006432 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 IN THE CASE OF: BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160006432 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 correction of her late husband's records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. 2. The applicant states it is her right to draw part of her late husband's military retirement. Her late husband did fill out a form for retirement benefits and he wanted to make sure she received her part of his retirement. He received a letter about the benefits, but the form is missing. She has a letter stating he was eligible for benefits. She finally got his discharge documents after a number of years. She has been working on this issue since 21 July 2008 when he would have reached age 60. 3. The applicant provides: * her social security card * her and the FSM's marriage certificate * FSM's DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 26 October 1969 and 26 October 1973 * FSM's National Guard Bureau Form 22 (Report of Separation and Record of Service) for the period ending 1 May 1993 * FSM's Notification of Eligibility for Retired Pay at Age 60, dated 5 February 1991 * FSM's National Guard Bureau Form 23 (Retirement Credits Record) * page 4 of FSM's DA Form 2-1 (Personnel Qualification Record – Part II) * FSM's Army National Guard Retirement Points History Statements, dated 2 December 1991 and 30 June 1992 * FSM's death certificate, dated 2 February 1998 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM was born on 21 June 1948. 3. He was inducted into the Army of the United States on 28 May 1968. On 26 October 1969, he was honorably discharged for immediate enlistment in the Regular Army. 4. He enlisted in the Regular Army on 27 October 1969 for a period of 4 years. On 26 October 1973, he was honorably discharged by reason of expiration term of service. 5. He enlisted in the Army National Guard on 2 March 1974. 6. He and the applicant married on 13 December 1975. 7. On 5 February 1991, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (commonly known as the 20-year letter) by the Office of the Adjutant General, State of Indiana Military Department. This memorandum does not indicate enclosures or provide instructions pertaining to the RCSBP. The form shows a handwritten entry stating "NO 1883 [DD Form 1883 (RCSBP Election Certificate)]" followed by the initials "JRB." 8. There is no evidence showing the FSM made an RCSBP election at the time of receipt of his 20-year letter. 9. On 1 May 1993, he was honorably discharged from the Army National Guard and transferred to the Retired Reserve. 10. The FSM died on 30 January 1998 at age 49. His death certificate shows he was married to the applicant at the time of his death. 11. The FSM's records contain a letter from the Defense Finance and Accounting Service (DFAS) Retired and Annuitant Pay Branch, dated 7 March 2016, responding to correspondence from the applicant pertaining to the Survivor Benefit Plan (SBP). DFAS records show the FSM died prior to his retirement eligibility date and was not in receipt of military retired pay. In order for DFAS to begin paying the applicant an SBP annuity, the FSM's branch of service must first authorize it. The applicant was provided instructions for the application process and advised that the FSM's branch of service would notify DFAS if SBP payments were authorized. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members serving 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. a. Three options are available: (A – Declination of Coverage) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B – Deferred Annuity) 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; and (C – Immediate Annuity) elect that a beneficiary receive an annuity immediately upon their death if before age 60. b. If death does not occur before age 60, the RCSBP costs for Options B and C are deducted from the member's retired pay (costs for Option C being the more expensive). Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP – it automatically converts to SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 3. Army Regulation 135-180 (Retirement for Non-Regular Service) prescribes policies and procedures governing Non-Regular (Reserve Component) retirement and implements statutory authorities governing granting retired pay for Non-Regular service to Soldiers in the Army National Guard, Army National Guard of the United States, and U.S. Army Reserve. Chapter 3 provides policies and procedures for implementing the RCSBP. Soldiers who were issued a Notification of Eligibility for Retired Pay at Age 60 after 1 December 1979 have been or will be furnished the RCSBP information and election certificate with their 20-year letter. All eligible personnel have 90 days from receipt of the 20-year letter to make their elections and return the form to the appropriate office. DISCUSSION: 1. DFAS records indicate the FSM did not make an RCSBP election in 1991 within the 90-day time frame as required by law, thereby automatically deferring the option to elect SBP participation upon application for retired pay at age 60. He died prior to reaching age 60. At the time of his death, he was not eligible to apply for retired pay and elect SBP coverage. 2. The applicant contends the FSM received and completed a form pertaining to his retirement benefits and he wanted her to receive them. As such, it is reasonable to presume the FSM was afforded an opportunity to elect coverage under the RCSBP, he elected Option B (Deferred Annuity), and the form was lost or misplaced by the appropriate Government office. 3. This presumption is supported by the fact that the applicant waited until the time her husband would have turned 60 to try to claim the benefit, as it demonstrates her understanding of when she was eligible to receive an annuity. 4. The Board may determine it would be equitable under these circumstances to correct the FSM's records to show he elected RCSBP Spouse Coverage, Option B, effective 1 March 1991 following issuance of his 20-year letter. BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 he elected Reserve Component Survivor Benefit Plan Spouse Coverage, Option B, effective 1 March 1991 and his election was accepted by the proper authority and processed in a timely manner. 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// ABCMR Record of Proceedings (cont) AR20160006432 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006432 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2