IN THE CASE OF: BOARD DATE: 3 January 2020 DOCKET NUMBER: AR20170013234 APPLICANT REQUESTS: reconsideration of her previous request for correction of the military records of her late husband, a former service member (FSM), to show he elected to enroll her in the Reserve Component Survivor Benefit Plan (RCSBP) within 1 year of marriage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Reconsideration appeal from a Survivor Outreach Services Coordinator on behalf of the applicant * Certificate of Marriage * Previous Army Board for Correction of Military Records (ABCMR) Docket Number AR20150011454 on 14 July 2016 * FSM’s: * 20-Year Letter * DD Form 1883 (SBP Election Certificate) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Honorable Discharge Certificate * SGLV Form 8286 (Servicemembers’ Group Life Insurance Election and Certificate) * DD Form 1172 (Application for Identification Card and DEERS Enrollment) * Death certificate FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150011454 on 14 July 2016. 2. The applicant states she is requesting an appeal of the previous ABCMR’s Board findings on 14 July 2016. 3. Review of the FSM’s service records show: a. The FSM was born on 14 June 1952. b. He enlisted in the Virginia Army National Guard (VAARNG) on 29 March 1971. c. On 12 December 1991, he was issued a 20-Year Letter. This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application. The letter also showed three enclosures, one of which detailed information concerning participation in the RCSBP. d. On 12 February 1992, he completed and signed a DD Form 1883. He indicated on the form he was not married, but had one dependent child born in 1977. He elected full and immediate coverage for his dependent child. e. He and the applicant were married on 23 June 1992. f. He was honorably released from the VAARNG on 1 May 1993 and was transferred to the Retired Reserve. His NGB Form 22 shows he completed 22 years, 1 month, and 3 days of total service. g. The FSM died on 24 January 2011. His death certificate lists the applicant as his surviving spouse and the informant. h. He would have reached age 60 on 14 June 2012. i. On 14 July 2016, the ABCMR determined the following: * the FSM elected coverage for children-only in the RCSBP program * the FSM had 1 year from the date of marriage to add her to his RCSBP, but did not do so, as such, she was not entitled to any benefits * there was no available evidence showing he attempted to submit an election, or that such an election was received and processed within a year of their marriage 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 letter. 5. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the RCSBP, but who later marries or acquires a dependent child, may elect to participate in the SBP. The service member must make his/her election in writing, and provide a signed copy so that the Secretary concerned receives it within 1 year after the date the service member marries or acquires that dependent child. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board notes that at the time of the FSM’s retirement, he was single and elected child only RCSBP coverage. There is no evidence the FSM attempted to add his spouse within one year of marriage to his SBP election during the period in which he was allowed. Additionally, the Board found that the applicant offered no new evidence to show the FSM intended to add his spouse. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : 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 to amend the decision of the ABCMR set forth in Docket Number AR20150011454 on 14 July 2016. 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. Army Regulation 135-180 (Army National Guard and U.S. Army Reserve Qualifying Service for Retired Pay Nonregular Service), in effect at the time, stated that to be eligible for retired pay an individual did 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. Each Reserve Components (RC) Soldier who completed the service required to be eligible for retired pay at age 60 would be notified in writing with a 20-Year Letter within 1 year after he/she completes the service. 2. Public Law 92-425, the Survivor Benefit Plan (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. 3. Public Law 95-397, enacted 30 September 1978, provided a way for RC 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 4. 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. 5. Public Law: * 101-189, enacted 29 November 1989, established an Open Season to be conducted from 1 October 1991 through 30 September 1992 * 101-501, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993 * 105-261, enacted 17 October 1998, established an Open Season to be conducted from 1 March 1999 through 29 February 2000 6. 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 (Optional as applicable.) //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013234 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1