ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 August 2019 DOCKET NUMBER: AR20190005902 APPLICANT REQUESTS: to receive the former service member's (FSM) Reserve Component Survivors Benefit Plan (RCSBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Verification for Survivor Annuity * Certificate of Marriage applicant and FSM * FSM's Certificate of Death * Judgement for Absolute Divorce Before the Clerk, applicant and second husband * Certificate of Marriage applicant and second husband * direct deposit form * withholding certificate * FSM's Retirement Points worksheet FACTS: 1. The applicant, the spouse of the FSM, states: * she requests her application for the SBP annuity be approved * she inquired about the SBP in 2012 but was ineligible because she was remarried * she was told to reapply if she divorced * she divorced on 9 July 2018 * she is now entitled to the SBP from her first husband the FSM 2. The FSM was a member of the US Army Reserve (USAR). His service records do not contain his 20 year letter; however, they contain a request from the Chief, Reserve Personnel Division requesting a 20 year letter dated 2 May 1990. The applicant provides the FSM's Retirement Points Worksheet from USAR Personnel Command, dated 23 March 1998, which shows he had 20 qualifying years for retirement. 3. The applicant and the FSM were legally married on 13 October 1979. The FSM died on 26 September 1998 at the age of 48. The applicant was remarried on 15 December 2001 at the age of 42 and was divorced on 9 July 2018. 4. There is no evidence in the FSM's records indicating he enrolled in the SBP. An email received from the Defense Finance and Accounting Service indicates the FSM's social security number does not appear on the retired rolls and there is no documentation indicating enrollment in the SBP. 5. 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. 6. Public Law 92-425, the SBP, enacted 21 September 1972, states, to retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment. BOARD DISCUSSION: 1. 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. Public law provides a suspense for submitting SBP elections. 2. There is no evidence the applicant ever elected spousal SBP during the period in which he was allowed. The evidence fails to support that the deceased FSM made an RCSBP election during the requisite time period. While the record does not contain the date of the actual 20 year letter, there is a documented 2 May 1990 request from Reserve personnel to send the letter. As there is no indication that the applicant responded to this letter, declination of coverage was presumed. The deceased FSM would have had another opportunity to elect SBP at the time of his non-regular retirement but he died before this occurred (ie, under the age of 60). Without any probative evidence to support that there was an RCSBP election made by the now deceased FSM, the Board finds insufficient evidence to grant relief for the applicant's request. 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. 9/17/2019 X CHAIRPERSON 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 NOTES: Not applicable. 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. 2. 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment.