IN THE CASE OF: BOARD DATE: 2 December 2021 DOCKET NUMBER: AR20210012772 APPLICANT REQUESTS: correction of her late husband's records to show she is the beneficiary of his Reserve Component Survivor Benefit Plan (RCSBP). 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) * U.S. Army Reserve Personnel Center Memorandum (Notification of Eligibility for Retried Pay at Age 60 (20-Year Letter)), 30 October 1996 * State Certificate of Marriage, 13 May 2008 * Service Member's Letter, 2 April 2015 * DD Form 2656 (Data for Payment of Retired Personnel), 3 April 2015 and date stamped 10 April 2015 * DD Form 2656-6, 3 April 2015 and date stamped 10 April 2015 and 4 May 2015 * State Certificate of Death, issued * DD Form 2656-7 (Verification for Survivor Annuity), 28 May 2015 * Applicant's and Service Member's Social Security Cards * DD Form 108 (Application for Retired Pay Benefits), undated * U.S. Army Human Resources Command (HRC) (AHRC) Form 249-E (Chronological Statement of Retirement Points), 6 May 2015 * Numerous Retired Pay and Duplicate Documents * Chief, Reserve Component Retirements Branch, HRC, Letter 10 June 2015 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 she wants to be designated as her late husband's beneficiary for the RCSBP. She has documentation showing it was her late husband's intent to add her as his beneficiary, but he did not know the proper process or the correct information prior to his death in order to rectify the situation. He attempted to add her by letter, 2 April 2015, but he passed away on. Her late husband was rated 100-percent service-related disabled. 3. Following prior enlisted service in the U.S. Navy and U.S. Naval Reserve, the service member enlisted in the U.S. Army Reserve (USAR) on 16 July 1980. 4. The USAR Personnel Center, St. Louis, MO, memorandum, 30 October 1996, notified the service member that he completed the required years of service for retired pay upon application at age 60. Paragraph 4 states: You are entitled to participate in the Reserve Component Survivor Benefit Plan (RC-SBP) 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 DAYSFROM THE DATE YOU RECEIVE THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD Form 1883). IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFITS 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. More detailed information concerning participation in the Reserve Component Survivor Benefit Plan (RC-SBP) and blank DD Form 1883 [Survivor Benefit Plan – Election Certificate] are enclosed. 5. The service member's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was promoted to the rank/grade of sergeant first class/E-7 effective 1 June 1997. 6. Headquarters, 85th Division (Exercise), Arlington Heights, IL, Orders 213-2, 1 August 1999, reassigned him to the Retired Reserve effective 31 July 1999 per his request. 7. A thorough review of the service member's Official Military Personnel File revealed no evidence of any RCSBP documentation indicating he made an RCSBP election within 90 days of receipt of his 20-year letter. 8. The applicant and the service member married on 10 May 2008. 9. The letter from the service member to an unidentified addressee, 2 April 2015, states he wants to add his wife, to his retirement packet so she is able to receive the Survivor Benefit Plan (SBP) annuity. He was unaware of the time limitations and remarried after he retired from the military. 10. The service member's DD Form 2656, 3 April 2015 and date stamped 10 April 2015, shows in:? a. Section V (Designation of Beneficiaries for Unpaid Retired Pay), no entry; b. Section VI (Federal Income Tax Withholding Information), block 14 (Marital Status), he placed an "X" in the "Married" box; c. Section VIII (Dependency Information), block 22 (Spouse), he listed with a date of marriage of 10 May 2008; d. Section IX (SBP Election), block 26 (Beneficiary Category(ies)), no blocks checked. However, he placed an "X" in the box indicating "I do have dependent children"; e. Section IX, block 27 (Level of Coverage), he placed an "X" in the "I elect coverage based on full gross pay" box; and f. Section XII (Certification), he signed the form on 3 April 2015 and his signature was witnessed on the same date by a representative of Headquarters and Headquarters Company, 2d Combined Arms Battalion, 136th Infantry Regiment, Army National Guard, Great Lakes, IL. 11. The DD Form 2656, 3 April 2015 and date stamped 10 April 2015 and 4 May 2015, shows the same data as the original DD Form 2656 except in Section IX (SBP Election), block 26 (Beneficiary Category(ies)), he placed an "X" in the "I elect coverage for spouse only." 12. The service member's DD Form 108, undated but signed, shows in: a. block 3 (Date Retired Pay to Begin), no entry; and b. Section labeled Service after 30 June 1949, the entry: "See AHRC 249-E." 13. The service member's death certificate shows he passed away on 23 April 2015. He was 57 years of age when he passed. 14. The AHRC Form 249-E, 6 May 2015, shows the service member completed 24 years and 1 day of qualifying service for retirement purposes. 15. The applicant applied for the deceased service member's RCSBP annuity as evidenced by the DD Form 2656-7, 28 May 2015. In a letter from the Chief, HRC Reserve Component Retirements Branch, 10 June 2015, her request was denied. He noted: The Reserve Component Survivor Benefit (RCSBP) established by Public Law 95-397, was to provide an annuity for the spouse and other eligible beneficiaries for Reserve soldiers or former soldiers who have completed 20 years of service for retired pay at age 60. By law [service member] had 90 calendar days from the date he received his letter to submit a Survivor Benefit Election Certificate (DD form 1883). lf 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. According to our records, [service member] did not make an election, prior to the 90 day suspense nor did he apply for retired pay. Therefore, you are not entitled to any benefits. You may apply to the Army Board for Correction of Military Records to review your case. The Board was established for the express purpose of considering the existence of error or injustice, and to make appropriate recommendations for corrective action. You may complete the enclosed Application for Corrections [sic] of Military Record (DD Form 149) and return it to the address highlighted on the form with a copy of this letter. 16. The applicant provided numerous other financial and instructional documents related to filing a claim for the deceased former service member's retired pay. 17. On 12 November 2021, a Defense Finance and Accounting Service pay technician stated its database does not contain any paperwork or show the deceased service member as having been on the retired rolls. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, a majority of the Board found relief is not warranted. 2. The majority noted that it appears the service member had eligible RCSBP beneficiaries (dependent children) when he received his notification of eligibility for retired pay at age 60. Because he had eligible beneficiaries and did not make an RCSBP election within 90 days of receipt of the notification, he was barred from participating in the SBP until he applied for retired pay at age 60. The majority found no evidence of error on the part of the Army in this case, and determined the applicant's request should be denied. 3. The member in the minority found it likely that the service member was poorly informed of the implications of not making an RCSBP election, and his widow should not suffer the effects of any failure on the part of the Army to ensure that he understood the impact of any decisions he made regarding his participation in the program. The member in the minority determined the service member's record should be corrected to show he elected spouse RCSBP coverage (option C based on the full amount of his retired pay) within one year of his marriage to the applicant and to show his election was approved. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of evidence. 3. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not be name. Since its creation, it has been subjected to a number of substantial legislative changes. 4. Public Law 95-397, enacted 30 September 1978, established the RCSBP. The RCSBP provided a way for Reserve Component members who qualified for Non- Regular (Reserve) retirement, but were not yet age 60 and eligible to participate in the 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 the member dies before age 60, but delay payment until the date of the member's 60th birthday * option C – elect that a beneficiary receive an annuity immediately upon the member's death if before age 60 5. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child, may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012772 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1