ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 August 2021 DOCKET NUMBER: AR20210007167 APPLICANT REQUESTS: correction of her late husband's, a former service member's (SM's), records to show she is entitled to receipt of the Reserve Component Survivor Benefit Plan (RCSBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Enclosure 1 – Letter, 31 July 2020 * Enclosure 2 – SM's Chronological Statement of Retirement Points, 4 February 2005 * Enclosure 3 – Marriage Certificate, 4 November 1989 * Enclosure 4 – U.S. Army Reserve Personnel Center Memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 18 August 1995 * Enclosure 5 – SM's DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), 9 April 1996 * Enclosure 6 – SM's Certificate of Death, 22 November 2016 * Enclosure 7 – U.S. Army Human Resources Command (HRC) Letter, 11 September 2018 * Enclosure 8 – Affidavit, 28 July 2020 * Enclosure 9 – National Personnel Records Center Letter, 15 January 2019, with supporting documents * Enclosure 10 – Counsel's Email (Scanned from a Xerox Multifunction Printer), 2 March 2020 * Enclosure 11 – Privacy Act Request, 10 March 2020 * Enclosure 12 – Congressional Letter, HRC, 22 April 2020 * Enclosure 13 – SM's Noncommissioned Officer Evaluation Report for the period ending November 1995 * Enclosure 14 – SM's Noncommissioned Officer Evaluation Report for the period ending November 1996 * Enclosure 15 – Lieutenant Colonel (Retired) T____ L____'s Letter, 23 July 2020 * Enclosure 16 – Counsel's Email (Denial of Survivor Benefit Annuity), 4 April 2019 * Enclosure 17 – Counsel's Email (Survivor Benefits Inquiry), 19 August 2019 * Enclosure 18 – HRC Email (Survivor Benefits Inquiry), 21 August 2019 * Enclosure 19 – U.S. Postal Service Certified Mail and Return Receipt Service Fee Histories FACTS: 1. The applicant states her late husband elected the RCSBP to provide a spouse-only annuity based on the full amount of his retired pay under Option C (Immediate Annuity). He filed the appropriate paperwork to ensure her eligibility to receive the RCSBP annuity within 90 days of receipt of the notification letter for his eligibility for retired pay at age 60. Accordingly, she should receive the RCSBP benefit effective the date following his death, 22 November 2016. 2. Counsel states: a. On 29 January 1975, the SM enlisted in the U.S. Army Reserve. On 4 November 1989, the SM and the applicant married. b. The U.S. Army Reserve Personnel Center memorandum, 18 August 1995, notified the SM that he was eligible for retired pay at age 60. In response, he elected to provide an immediate annuity (Option C) beginning the day after his death, whether before or after age 60. Additionally, he elected "spouse only" coverage with an annuity based on the full amount of his retired pay. The SM and the applicant signed the DD Form 1883 on 9 April 1996 and it was received by the U.S. Army Reserve Personnel Center on 18 April 1996. c. On 24 June 2004, the SM retired from the U.S. Army Reserve. In 2013, he was diagnosed with acute myeloid lymphoma and died from this disease on 19 November 2016, approximately 9 1/2 months before he reached age 60. The SM and the applicant were married at the time of his death. (Note: The SM transferred to the U.S. Army Reserve Control Group (Retired Reserve) effective 24 June 2004.) d. In July 2018, the applicant filed for the RCSBP annuity. The letter from HRC, 11 September 2018, informed the applicant that she was not eligible for a survivor benefit annuity because the SM did not submit an SBP Election Certificate within 90 days of receiving his 20-year letter as required by Public Law 95-397. e. HRC's denial of the RCSBP annuity is unjust for the following reasons: (1) HRC cannot provide any evidence showing the SM failed to elect to participate in the RCSBP within 90 days of "receipt" of his DD Form 1883 because the U.S. Army Reserve Personnel Center failed to develop appropriate, logical, and reasonable controls for the 90-day suspense period. There are no documents or evidence to show when the SM actually received the SBP Election Certificate to start the 90-day suspense. Additionally, the SM was very diligent in maintaining his family's financial matters and his personnel evaluations noted his excellence in responsibility and accountability, which indicates he would have timely responded to this critical matter. (2) The U.S. Army Reserve Personnel Center was negligent by failing to inform the SM that it determined his SBP election certificate was not returned in a timely manner and providing him an opportunity to explain the timeliness. Upon receipt of the required documents, action was required by the U.S. Army Reserve Personnel Center to either enroll the SM's spouse or notify the SM of her ineligibility. (3) In December 2018, HRC admitted the SM's file did not contain any evidence that the U.S. Army Reserve Personnel Center had ever contacted him regarding the timeliness of his election certificate. (4) The U.S. Army Reserve Personnel Center's failure to notify the SM and his spouse that she was not enrolled for the RCSBP annuity significantly impacted their ability to make sound retirement planning decisions for two significant reasons: * had the SM known his spouse was not eligible, he would have had the opportunity to enroll her during one of the subsequent 1-year open enrollment periods for SBP * had they known the SM's spouse was not eligible, they would have certainly purchased a life insurance policy for the SM f. Failure to notify the SM and his spouse that she was not enrolled for the RCSBP annuity is inexcusable. The Army has failed the SM and his widow, and this is clearly a great injustice. As a result, the applicant has experienced significant financial harm. Approaching age 65, she must now continue to work on a full-time basis long after she anticipated being able to retire. 3. On 29 January 1975, the SM enlisted in the U.S. Army Reserve in the rank/grade of private/E-1. 4. On 4 November 1989, the SM and the applicant married. 5. The U.S. Army Reserve Personnel Center memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 18 August 1995, states, in part: a. "Having completed the required years of service, you will be eligible for retired pay on application at age 60. Your eligibility for retired pay may not be denied for revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed." b. "You are entitled to participate in the RCSBP established by Public Law 95-397. This plan enables you to provide an annuity for your spouse and other eligible beneficiaries. By law, you have only 90 calendar days from the date you receive this letter to submit your SBP election certificate (DD Form 1883). If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60. If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits." 6. The SM's DD Form 1883, 9 April 1996, shows in: * item 6 (Are you married?) – Yes * item 7 (Do you have dependent children?) – No * item 8 (Check one of the following to indicate coverage) – Spouse Only * item 9a (Do you elect to provide annuity based on full or reduced portion?) – Full * item 9c (Option A, B, or C) – Option C (Immediate Coverage) * item 10 (Name of Spouse) – Applicant * section VI (Signatures) – signature of the FSM, a witness, and the applicant * date stamped, 18 April 1996, with a handwritten check mark at top of form 7. On 23 June 2004, the SM transferred to the U.S. Army Reserve Control Group (Retired Reserve) in the rank/grade of sergeant first class/E-7 at age 46. 8. On 19 November 2016, the SM died. He was 59 years old at the time of his death. His death certificate shows the applicant as his surviving spouse. 9. The HRC letter, 11 September 2018, denied the applicant's request for a survivor benefit annuity. It states, in part: a. The RCSBP established by Public Law 95-397 was to provide an annuity for the spouse and other eligible beneficiaries for Reserve Component Soldiers who completed 20 years of service for retired pay at age 60. By law, the SM had 90 calendar days from the date he received his letter to submit a DD Form 1883. If an election was not made within the required 90 calendar days, he would not be entitled to Survivor Benefit coverage until he applied for retired pay at age 60. b. The applicant may apply to the Army Board for Correction of Military Records (ABCMR) to review her case. 10. The email from the HRC Retirements Branch (Survivor Benefits Inquiry), 21 August 2019, advised the applicant's counsel that the 20-year letter outlines the 90-day rule to apply for the RCSBP. If not completed, the SM is locked out until applying for retired pay at age 60. The new law, effective January 2001, automatically defaulted to Option C if no election was made. The applicant's best course of action is to petition the ABCMR for the SBP annuity. 11. The HRC letter, 22 April 2020, responded to a Congressional inquiry and stated the applicant has been notified that she is not eligible for an SBP annuity and that she may apply to the ABCMR to review her case. 12. The HRC letter, 14 May 2020, responded to a Congressional inquiry and stated, in part: a. Public Law 95-397 requires an SM to make the RCSBP election no later than 90 days after receiving the 20-year letter. The SM's letter is dated 18 August 1995, meaning he would have 90 days from that date to submit his RCSBP election certificate. The signature date on the DD Form 1883 is 9 April 1996, more than 90 days from the date of the letter. In accordance with Public Law 95-397, the RCSBP election is invalid. b. The applicant may apply to the ABCMR to review her case. 13. The letter from the SM's former commanding officer, 23 July 2020, stated, in part: a. He served with the SM for over 6 years, also having served as his commanding officer. During that period, the SM held positions that required timely completion of his duties. The SM was an exceptional Soldier who was very efficient and very time- oriented, who never missed a suspense. While he has no personal knowledge of the timeliness of the SM's SBP election certificate, he has no doubt that it would have been returned in a timely manner. b. As a retired lieutenant colonel, it was very disheartening for him to learn that the Army would deny survivor benefits to the widow of a Soldier who proudly and honorably served his country for 30 years. Furthermore, there is no evidence showing when the notification memorandum was actually sent to the SM, because there was no tracking system to maintain those important records. Considering the rule at the time that the spouse would have been ineligible if the suspense date was not met, a counseling should have been triggered to advise both the SM and his spouse. c. In this case, the Army has failed the Soldier and his widow, and this is clearly a great injustice. 14. Counsel's affidavit, 28 July 2020, outlines the extensive actions taken by the applicant and himself, as her pro bono counsel, to apply for and receive the RCSBP annuity. Having reviewed the SM's extensive military files that were maintained over a 30-year career, he thoroughly examined every document and found the 20-year letter, SBP Election Certificate, and an SBP Fact Sheet for the RCSBP. There were no documents showing the date of receipt or that the SM was informed that he had failed to meet the 90-day suspense. There was no indication that his spouse had not been enrolled as they elected. 15. The email from the Defense Finance and Accounting Service Retired and Annuity Pay Section (Reply: ABCMR Verification Request: RCSBP Spouse Coverage), 10 June 2021, states the SM never applied for retired pay and DFAS does not have records regarding his RCSBP coverage. 16. The email from the HRC Gray Area Retirees Branch (Applicant), 11 June 2021, states the SM did not sign his DD Form 1883 until 9 April 1996, which is outside the 90-day window. Based on the law at that time, he would not be eligible to add dependents until age 60. Further, his records show he was transferred to the Retired Reserve on 23 June 2004, but there are no orders in his military records. He would have been eligible to apply for retired pay on 2 September 2017. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board noted that the SM and his spouse received no notification that the SM's RCSBP election was found to have been submitted outside of the 90-day period from receipt of his 20-Year Letter and also noted that the letter specified the 90-day period began on the date he received the letter, a date which is not found in his record. The Board found this lack of notification led to the reasonable assumption that the RCSBP election had been accepted as submitted. The Board also noted that the law has since changed, and now failure to submit a timely RCSBP election results in default spouse coverage under Option C based on an SM's full retired pay. Based on a preponderance of evidence, the Board determined the SM's record should be corrected to show his RCSBP election was received with 90 days of the date on his 20-Year Letter and the applicant should be paid the RCSBP annuity retroactive to the day after his death. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show his RCSBP election was received and processed within 90 days of 18 August 1995, the date of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), and the applicant should be paid the RCSBP annuity retroactive to the day after his death. 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: Public Law 95-397, the Reserve Component Survivor Benefit Plan (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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 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. An open enrollment season was established from 1 October 1978 through 30 September 1979 and later extended to 31 March 1980. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007167 8 1