ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20160016339 APPLICANT REQUESTS: make Reserve Component Survivor Benefit Plan (RCSBP) election for spouse and children. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * US Army Human Resources Command (HRC) denial of benefits * Verification for Survivor Annuity * State of Mississippi Death Certificate * State of Mississippi Marriage Certificate * birth certificate and social security card * notification for eligibility of retired pay * retirement points worksheet * discharge orders * claim for SBP FACTS: 1. The applicant states: * her husband, the former servicemember (FSM), inadvertently did not submit the SBP form within the required 90 day period * he would not be entitled to SBP coverage until he applied for retired pay at the age of 60 * the FSM passed away on 12 November 2012 * she respectfully requests the FSM's records be changed to allow for SBP for herself and her daughter * the FSM had a combination of active duty and National Guard service * he served for 20 years * due to his oversight the applicant and her daughter are unable to receive SBP * her daughter is 12 years old and in the 7th grade * she was 8 years old at the time of the FSM's death * the applicant heard from her husband on several occasions he wanted to leave something for his children * she and the FSM were married for 10 years prior to his death * she believes her husband would want his benefits to be paid to his survivors * she contacted his National Guard unit in Louisiana at the time of his death * she was told she wouldn't be able to receive the benefits until the time her husband would have been 60 * he was 50 years of age at the time of his death * she thought she had to wait 10 years * when she was renewing her ID card she was provided information to apply for the benefits now * she's been trying to get the benefits since July 2016 * she believes her husband would have made the election but it was an oversight on his part * it would be unjust to not pay the SBP he earned with 20 years of service to his survivors 2. The FSM retired from the National Guard on 29 August 1999. He was 37 years old at the time of his retirement. He received a letter from National Guard Bureau notifying him he was eligible for retired pay at the age of 60. One of the enclosures accompanying the letter was the SBP Summary. There is no evidence regarding the information contained within the SBP Summary. 3. The FSM passed away on 12 November 2012. He was 50 years of age at the time of his death. The applicant applied for SBP with HRC on 17 August 2016. She received a response from Chief, Reserve Component Retirements Branch of HRC denying her eligibility for SBP annuity because the FSM did not make his SBP election within 90 days from receipt of his letter to submit an SBP election certificate. 4. There is no evidence in the FSM's records that he made an SBP election upon receipt of his 20 year letter. He passed away before he reached the age of 60, so he was unable to make an election when he became of age to receive retirement pay. 5. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve components Soldiers. It states members who receive their 20-year letter have 90 days to elect to participate in the RCSBP. Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60. Should the Soldier die before reaching their retired pay eligibility age, the survivors will not receive RCSBP benefits. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board found there was insufficient evidence to show that the FSM elected coverage at any point, which may have been the intent of the FSM. For that reason, the Board concluded that there was no error or injustice which would warrant changing the record. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant X X X DENY APPLICATION 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. REFERENCES: 1. Public Law 95-397, the Reserve Component SBP, 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. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 2. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage. 3. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP. It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60. Should the Soldier die before reaching their retired pay eligibility age, the survivors will not receive RCSBP benefits. ABCMR Record of Proceedings (cont) AR20160016339 3