ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20170004657 APPLICANT REQUESTS: the widow of a deceased former service member (FSM) requests reconsideration of her earlier request for correction of his records to show a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) was timely filed. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 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 AR20130009928, on 18 February 2014. 2. The applicant states: a. The FSM served diligently in the United States Army and Army Reserve for a total of 35 years prior to his death on 25 February 2013. He attained the rank/grade of staff sergeant (SSG)/E-6. They were married on 12 September 1981 and were married for 31 years at his time of death. He passed away before the age of 60, before he was eligible to receive his retirement benefits. However, they did complete a DD Form 1883 for the Survivor Benefit Plan (SBP) in 1997. He made an election on his SBP form, by choosing Option C (immediate coverage) in item 9c, which elects her (his spouse) to receive the full amount of his retirement benefits should he pass away prior to the age of 60. She concurred. b. Since his passing, she has been trying without success to contact the Army with regard to receiving these benefits. She submitted all of the required paperwork including his death certificate, marriage certificate, DD Form 2656, W-4, the Standard 1199A Form for Direct Deposit Sign-up, SF 1174, the DD Form 214, and DD Form 1883, dated 27 December 1997. She continue to get denied based on the contention that the DD Form 1883 was not received within the 90 day requirement. However, on number 4 of the Notification of Eligibility for Retired Pay at age 60 letter, it states that the 90 calendar day submission requirement starts from the date the FSM receives the Notification of Eligibility letter. While the letter is dated for 19 February 1997 and the DD Form 1883 is signed and dated for 27 December 1997, there is no documentation confirming when her husband actually received the letter. c. It is her belief that the FSM did not receive the letter within a reasonable amount of time after 19 February 1997. It is her argument that although the DD Form 1883 was not signed and dated within 90 days from the date the letter was composed, it was signed within 90 days from the date in which her late husband received the letter. Also, his NCO (noncommissioned officer) at the time signed the DD Form 1883 as a witness. It can be inferred that the NCO would not have signed the form if it was after the 90 day submission requirement but rather would have instructed the FSM of an alternative plan of action to ensure his SBP would be accepted. Therefore, it is believed that the unit failed to ensure her late husband received the Notification of Eligibility for Retired Pay letter in a timely manner, allowing him to complete the SBP Election Certificate within a reasonable time frame. d. She is requesting payment of the SBP annuity based on the death of her husband and the fact that he submitted the SBP Election Certificate Form (DD Form 1883) within the 90 day required time frame of his receipt of the Notification of Eligibility for Retired Pay at age 60 letter. He was always diligent about completing paperwork on time and I believe that this process was not different. His unit failed to handle the process in a timely manner. 3. Review of the FSM's service records shows: a. The FSM was born on 30 September 1955. He and the applicant married on 12 September 1981. b. Having had prior active service in the Regular Army, he enlisted in the U.S. Army Reserve on 18 February 1986. He served through multiple extensions of reenlistments and he attained the rank/grade of SSG/E-6. c. On 19 February 1997, the U.S. Army Reserve Personnel Center, St. Louis, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter notified him that, having completed the required years of service, he would be eligible for retired pay on application at age 60 in accordance with the provision of Title 10, U.S. Code, Chapter 1223. Paragraph 4 of this memorandum stated: You are entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP) established by Public Law 95-397. This plan enables you to provide an annuity for your spouse, and other eligible beneficiaries. BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS LEITER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD FORM 1883). IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60. IF YOU DO NOT ELECT COVERAGE AND SHOULD DIE BEFORE AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO BENEFITS. More detailed information concerning participation in the Reserve Component Survivor Benefit Plan (RC-SBP) and blank DD Form 1883 are enclosed. d. The applicant previously provided DD Form 1883, dated 27 December 1997, which shows the FSM indicated he was married to the applicant and they had dependent children. He elected "spouse only" RCSBP coverage, under Option C (immediate annuity), based on the full amount. He and a witness signed this form on 27 December 1997, and his spouse (the applicant) concurred with his election and signed it on that date. . e. He was transferred to the Retired Reserve on 31 January 2008. f. On 25 February 2013, the FSM died. He was 58 years of age. His death certificate shows he was married and the applicant was his surviving spouse. g. On 23 April 2013, by letter, officials at the U.S. Army Human Resources Command replied to her inquiry concerning eligibility for SBP annuity based on the military service of her late husband. The letter stated: (1) The Reserve Component Survivor Benefit (RCSBP), established by Public Law 95-397, was to provide an annuity for the spouse and other eligible beneficiaries for Reserve Soldiers or former Soldiers who have completed 20 years of qualifying service for retired pay at age 60. By law, the FSM had 90 calendar days from the date he received his 20 year letter to submit a SBP Election Certificate (DD Form 1883). If an election was not made within the required 90 calendar days, he would not be entitled to Survivor Benefit coverage until he applied for retired pay at age 60. (2) According to the official records, the FSM was issued his 20 year letter on 19 February 1997, and his SBP Election Certificate (DD Form 1883) was signed on 27 December 1997, after the 90 day time frame. Therefore, she was not entitled to an SBP annuity. h. On 18 February 2013, the Board considered the applicant's petition and contentions and determined that the FSM failed to make an RCSBP election within the required 90-calendar day time frame. His 20-year letter was dated 19 February 1997 and his DD Form 1883 was dated 27 December 1997. The law required the RCSBP election to be made within 90 days of receiving the 20-year letter or the opportunity to elect coverage was deferred until age 60. The Board concluded there was insufficient evidence to show the FSM completed the DD Form 1883 in the required time frame. Therefore, there is no basis in equity for relief. 4. By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-Year Letter informing them of their retirement eligibility. They 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 of their notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elect to participate in the standard SBP. By not submitting an RCSBP election within 90 day effectively deferred a member's election to age 60. As this was a deferral, as opposed to an affirmative election to decline full spouse coverage, notice to the spouse was not required at the time. Additionally, since he chose to defer his election to age 60, there would be no coverage until the member made an election at age 60. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. The record shows the FSM submitted the require election after the suspense. The Board agreed his intentions were to provide coverage for his spouse. Based upon the preponderance of evidence, the Board agreed to amend the previous Board’s decision and grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130009928, on 18 February 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he properly elected the Survivor Benefit Plan (SBP) on within 90 days of receiving his 20 year letter, and his election was received and processed in a timely manner by the appropriate DFAS office. 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 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. 2. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, 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 for those previously not participating in the program or allows participating members to make changes to their coverage amounts. 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 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/her 20-year letter. ABCMR Record of Proceedings (cont) AR20170004657 3 1