ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20180008548 APPLICANT REQUESTS: in effect, receipt of her deceased spouse’s (former service member (FSM) survivor benefit plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD form 214 (Report of Separation) * character reference * certificate of death * marriage license FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in effect, she requests to receive the FSM’s SBP as the surviving spouse. The FSM was 59 years of age at the time of his death. He served faithfully and fully intended to meet and adhere to all governing directives and requirement to be eligible for reserve retirement. Due to his long and honorable service and the short remaining time to meet the 60 years of age requirement, she asks that all factors and circumstances be considered and the Board approve receipt of the SBP as a tribute to the FSM’s service to our great nation. Furthermore, she was not counseled to the fact that there were administrative options for placing this request. Once she became aware of these options she submitted the request within 7 days. 3. The applicant provides: a. DD form 214, which shows the FSM was ordered to active duty on 12 July 1952. He was released from active duty on 11 April 1954 with an honorable characterization of service. His DD form 214 shows that he completed 1 year and 9 months of active service. b. A character reference from X__, who in effect states, that he is writing on behalf of the applicant, widow of the FSM to change the pension that was earned by the FSM for his service to his country to the applicant, along with any other prior benefits which are due to her since the death of the FSM on 5 May 1989. As he knew the FSM since 1963 both personally and professionally, they were both active in a non-profit organization that raised money to purchase clothing for underprivileged children in the City of Chicago. X__ is proud to be the godfather of the FSM’s younger son, with whom he has regular contact. The FSM proudly served as an Army reservist and he believed in serving god, honor and country. The FSM initially served in Korea as a press aid to Major X__, who later became the Chief of Staff or the U.S. Army. The FSM service his country for a good number of years and did so with dignity, pride and always defended both the flag and his country. It would be in the best interest of his long dedicated service to his country to grant a portion of his deserved pension that he did not live long enough to collect to the applicant. c. State of Illinois Medical Certificate of Death, which shows the FSM was pronounced deceased on 5 May 1989 and the applicant as the surviving spouse. d. Marriage license that show that the FSM married X__ on 20 May 1977. 4. The applicant’s service records are not available for review with this case. An exhaustive search was conducted to locate his service records which are necessary in the processing of his case, with no success. His case is being considered based on his DD Form 214 (Certificate of Release or Discharge from Active Duty) provided by the applicant. 5. United States Army Reserve (USAR) Personnel Center Order Number C-07-905867 dated 1 July 1983, he was assigned to the USAR Control Group (Retired) on 1 July 1983. 6. Information obtained from Defense Finance and Accounting Service Retirement and Annuity Branch shows that there is no documentation on file for SBP or an application for receipt of retired pay. 7. By law, a person who is eligible to participate in the Plan who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required not to participate in the Plan before the first day for which he is eligible for that pay. 8. By law, Soldiers who complete twenty 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. By not submitting an RCSBP election when he/she received his/her 20-Year Letter, a Reserve Component Soldier effectively deferred his/her election until age 60 when he/she applies for retired pay. 9. Although the law has been changed to make RCSBP spouse coverage immediate and automatic unless a spouse concurs with a declination or delay in coverage, Congress specifically declared the change effective beginning with those 20-Year Letters issued after 1 January 2001. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon a lack of submitted documentation to demonstrate the election preference of the FSM, the Board concluded that there was no error or injustice which would warrant making a change to the FSM’s military record. 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 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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 Survivor Benefit Plan (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. Title 10 USC, section 1448, the program established shall be known as the Survivor Benefit Plan (SBP). The following persons are eligible to participate in the Plan: persons entitled to retired pay and persons who would be eligible for reserve component retired pay but for the fact that they are under 60 years of age. A person who is eligible to participate in the Plan and is married or has a dependent child when he is notified that he has completed the years of service required for eligibility for reserve component retired pay, unless the person elects (with his spouse’s concurrence, if required) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification. A person who elects not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan. 4. Title 10 USC, section 1450, effective as of the first day after the death of a person to whom section 1448 of this title applies, a monthly annuity under section 1451 of this title shall be paid to the person’s beneficiaries under the Plan, as follows: * surviving or former spouse * surviving children * dependent children, the dependent children in equal * special needs trusts for sole benefit of certain children, supplemental or special needs trust established for the sole benefit of a dependent child considered disabled who is incapable of self-support because of mental or physical incapacity * natural person designated under “insurable interest” coverage 5. Title 10 USC, section 1451, reserve component annuity, in the case of a reserve component annuity provided to a beneficiary the monthly annuity payable to the beneficiary shall be the amount equal to a percentage of the retired pay of the person who elected to provide the annuity after the reduction in such that is less than 55 percent; and is determined under subsection (f) of this title. Computation of when participant dies before age 60, a person: * who provides an annuity that is determined in accordance with that paragraph * who dies before becoming 60 years of age * who at the time of death is otherwise entitled to retired pay, shall be considered to have been entitled to retired pay at the time of death. The retired pay of such person for the purposes of such paragraph shall be computed on the basis of the rates of basic pay in effect on the date on which the annuity provided by such person is to become effective in accordance with the designation of such person under section 1448(e) of this title. ABCMR Record of Proceedings (cont) AR20180008548 4 1