ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20170019682 APPLICANT REQUESTS: The applicant, the spouse of the Former Service Member (FSM), requests to be awarded the FSM’s Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60, dated 2 March 1999 * FSM’s death certificate, dated 5 August 2017 * DD Form 2656-7 (Verification for Survivor Annuity), dated 3 October 2017 * Direct deposit form, dated 3 October 2017 * Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 3 October 2017 * FSM’s Army National Guard (ARNG) retirement points history statement * applicant and the FSM’s social security cards * U.S. Army Human Resources Command (HRC) letter, dated 30 October 2017 * Defense Finance and Accounting Service (DFAS) letter, dated 1 February 2019 FACTS: 1. The applicant states she was not aware of the 90 day timeframe and the FSM’s death certificate was late. 2. A review of the FSM’s service records show the following on: * 23 February 1978 – enlisted in the Mississippi ARNG * 2 March 1999 – the Adjutant General’s Office, Jackson, MS, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) notifying him he was eligible for retired pay upon application at age 60 with enclosures * 5 June 1999 – honorably released from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve), National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 21 years, 3 months, and 13 days of net service * * the FSM’s record is void of a DD Form 1883 (SBP Election Certificate) indicating he elected Reserve Component SBP (RCSBP) coverage * the FSM was 58 years of age at death 3. The applicant provides: * Marriage Certificate showing she and the FSM were married on 25 October 1980 * FSM Death Certificate showing the FSM died on 5 August 2017 and she was the informant * DD Form 2656-7 wherein she was claiming the FSM’s SBP * Direct deposit form for deposit of the SBP annuity payments * Form W-4P showing federal income tax withholdings * ARNG retirement points history statement showing the FSM had at the time 20 years, 3 months, and 13 days of creditable service for retired pay * applicant and FSM’s social security cards * HRC letter wherein the applicant was informed her application for the FSM’s SBP was denied because the FSM had not submitted a DD Form 1883 within 90 days of receipt of his 20-Year Letter and the FSM would not be eligible for SBP coverage until he applied for retired pay at age 60 * DFAS letter wherein the applicant was informed the FSM died prior to his retirement date and was not in receipt of retired pay and in order for DFAS to authorize it the FSM’s branch of service must first authorize it 4. 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. At the time, 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 have waited until he/she applied for retired pay and elected to participate in the standard SBP. Spousal concurrence or notice was not required for a member to defer the SBP coverage decision until reaching retirement age. 5. Army Regulation (AR) 135-180 (Qualifying Service for Retired Pay Non-regular Service) 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 received their 20-year letter prior to January 1, 2001, such as in this case, have 90 days to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, the member may subsequently elect coverage under the SBP with his or her application for retired pay upon reaching age 60. 1. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the record. The Board noted the Notification of Eligibility for Retired Pay at Age 60 (20-Year) letter in the record, but found no evidence that the applicant submitted an SBP Election Certificate at any time after receipt of the 20-Year letter and the applicant did not provide any other evidence that would indicate intent by the FSM to make an SBP election. One Board member recommended that the SBP be authorized upon the date that the FSM would have reached age 60. The Board majority found that the evidence did not support the applicant’s request. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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. At the time, 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 have waited until he/she applied for retired pay and elected to participate in the standard SBP. 2. AR 135-180 (Qualifying Service for Retired Pay Non-regular Service) 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 received their 20-year letter prior to January 1, 2001 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.