ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20190009765 APPLICANT REQUESTS: The applicant, the widow of the former service member (FSM), requests to be added as the FSM’s Reserve Component Survivor Benefit Plan (RCSBP) annuitant. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FSM and Ms. P- divorce decree, dated 23 May 1991 * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20- Year Letter), dated 4 March 1999 * DARP Form 3856 (Reserve Component Supplemental SBP Election Certificate), dated 20 July 1999 * DD Form 1883 (SBP Election Certificate), dated 20 July 1999 * Orders Number 215-017, dated 20 September 1999 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 30 September 1999 * FSM and Ms. P- divorce decree, dated 22 January 2001 * Applicant and FSM Marriage Certificate, dated 15 April 2007 * North Carolina (NC) retirement systems contributory death benefit for retired members application, dated 2 October 2009 * Application for disability insurance, dated 1 August 2016 * FSM Death Certificate, dated 16 September 2018 * Army National Guard (ARNG) current annual statement, dated 19 September 2018 * Social Security Administration letter, dated 11 October 2018 * One main solutions claim form, dated 23 October 2018 * Merit life insurance letter, dated 7 November 2018 * SF 1199 (Direct Deposit Sign-Up Form), dated 29 December 2018 * Birth Certificate * DD Form 2656-7 (Verification for Survivor Annuity), dated 29 December 2018 * W-4P (Withholding Certificate for Pension or Annuity Payments), dated 29 December 2018 * U.S. Army Human Resources Command (HRC) letter, dated 17 May 2019 * Applicant’s social security card * Applicant identification card FACTS: 1. The applicant states in pertinent part: * she was married to the FSM at the time of his death and should be awarded the RCSBP * it is an injustice to her because the FSM had two previous marriages both ending in divorce and he did not designate either of his former spouses as a beneficiary of his RCSBP * the FSM’s intention was to designate her as the RCSBP beneficiary as he did on his insurance policies * she understands the FSM elected Option A and that election was meant to prevent any of his former spouses from receiving the RCSBP annuity * the FSM died prior to reaching the age of 60, and he went to the local North Carolina ARNG (NCARNG) armory numerous times to designate her as the RCSBP beneficiary and was told he would have to wait until he was 60 years of age 2. A review of the FSM’s official records shows: * 24 February 1979 – the FSM enlisted in the NCARNG and served in various assignments * 30 September 1999 – the FSM was honorably released from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve), NGB Form 22 shows he completed 20 years, 7 months, and 7 days of net service * the FSM’s records are void of a 20-Year Letter or DD Form 1883, however, they are provided by the applicant * the FSM was 59 years of age at death 3. The applicant provides: * FSM’s divorce decree from Ms. P-, showing they were divorced on 23 May 1991, the decree is silent in regards to the RCSBP * 20-Year Letter showing the FSM was eligible to apply for retired pay upon reaching age 60 * DARP Form 3856 showing the FSM declined to elect coverage under the Reserve Component Supplemental SBP * DD Form 1883 showing at the time the FSM was married to Ms. P- with dependent children (aged out of the RCSBP) and he elected Option A (declining to make an election); it is void of his spouses signature * Orders Number 215-017, issued by the Office of the Adjutant General, showing the FSM was transferred to the Retired Reserve * FSM’s divorce decree from Ms. P-, showing they were divorced on 22 January 2001, the decree is silent in regards to the RCSBP * Marriage Certificate showing the applicant and FSM were married on 15 April 2007 * NC retirement systems contributory death benefit for retired members application, showing the FSM was married to the applicant * Application for disability insurance, showing the FSM was married to the applicant * Death Certificate, showing the FSM died on 16 September 2018 and the informant was his daughter and he was survived by the applicant (current spouse) * ARNG current annual statement, showing the FSM had 20 years, 7 months, and 7 days of creditable service for pay * Social Security Administration letter, showing a monthly monetary amount being issued to the applicant due to the FSM’s death * One main solutions claim form, showing the applicant as the beneficiary * Merit life insurance letter, showing the applicant receiving a beneficiary payment due to the FSM’s death * SF 1199, showing the establishment of an account based on a military survivor annuity * Applicant’s Birth Certificate * DD Form 2656-7, showing the applicant attempted to process a RCSBP claim * W-4P, showing a request for tax exemption based on the annuity * HRC letter, showing an HRC official informed the applicant she was not eligible for the RCSBP because the FSM elected Option A to make an election at age 60 * Applicant’s social security card * Applicant’s identification card 4. See applicable RCSBP laws below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. In 1999, The FSM affirmatively elected to defer his decision on SBP coverage until he reached age 60. This election, once made, was irrevocable, as clearly stated on the election form he completed. The form also clearly stated that if he did not elect Option B or C and he should die before reaching age 60, his survivors would not receive benefits under RCSBP. 3. While it is truly unfortunate that he died before reaching age 60, because of the FSM's valid election, the applicant is not entitled to an SBP annuity as a matter of law. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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. Public Law 95-397, the Reserve Component SBP (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. 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. 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. Army Regulation 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 receive their 20-year letter 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. ABCMR Record of Proceedings (cont) AR20190009765 4 1