BOARD DATE: 7 February 2013 DOCKET NUMBER: AR20120013255 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the spouse of a deceased former service member (FSM), requests correction of her deceased husband's record to show she made a timely application for an annuity under the Reserve Component Survivor Benefit Plan (RCSBP). She requests the RCSBP annuity be paid to her retroactive to 2002 when the FSM died. 2. The applicant states she was not provided any oral or written limitations on when to apply for her husband's retirement pay. Had she known, she would have started immediately due to financial hardship. 3. The applicant provides: * Defense Finance and Accounting Service (DFAS) letter, dated 13 June 2012 * U.S. Army Human Resources Command, Reserve Components Retirements Office letter, dated 16 May 2012 * Department of the Treasury, Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 21 May 2012 * Standard Form 1199A (Direct Deposit Sign-Up Form), dated 23 May 2012 * FSM's Certificate of Death * Marriage Certificate * Army National Guard (ARNG) Retirement Points History Statement, dated 29 May 2012 * DD Form 2656-7 (Verification for Survivor Annuity), dated 21 May 2012 * DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 20 May 1992 * Service Member's Statement Concerning Compensation from the Veterans Administration, dated 10 May 1992 * State of California, Office of the Adjutant General, memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60, dated 2 April 1992 CONSIDERATION OF EVIDENCE: 1. The FSM served in the U.S. Marine Corps Reserve, U. S. Army Reserve, and the ARNG. 2. On 20 May 1992, the FSM completed a DD Form 1883 in which he made an election to participate in the RCSBP and elected immediate full coverage for his spouse and children 3. On 11 June 2002, the FSM died at 50 years of age. 4. On 21 May 2012, in response to the 16 May 2012 memorandum from the HRC Reserve Components Retirement Office, the applicant submitted a DD Form 2656-7 requesting verification of her entitlement to the RCSBP. On 13 June 2012, DFAS denied her request, stating it was not in compliance with the filing provisions stipulated in Title 31, U.S. Code, which specifically require the receipt of SBP claims by DFAS within 6 years of the date of death. The memorandum stated she could apply to the Army Board for Correction of Military Records for a review of her case. 5. The applicant provides copies of the: a. marriage certificate from the State of California, showing she and the FSM were married on 11 December 1971; b. FSM's certificate of death from the State of California, County of San Diego, showing he was married at the time of his death; c. FSM's ARNG Retirement Points History Statement showing he had 26 years, 2 months, and 21 days of creditable Service for retired pay. 6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 7. Title 31, U.S. Code, section 3702, also known as the Barring Act, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of her deceased husband's record to enable her to collect an RCSBP annuity has been carefully considered and is determined to have merit. The evidence clearly indicates the FSM elected to provide an immediate RCSBP annuity to his spouse and eligible children in the event of his death. 2. The evidence in this case confirms the FSM's RCSBP election. The FSM's marriage to the applicant is not in question. 3. It is reasonable to conclude the applicant was neither aware that her RCSBP entitlement began on her husband's death rather than on his 60th birthday, nor aware of the legislation requiring her to make application for the RCSBP annuity within 6 years of the FSM's death. Had she known, she would have made application immediately. To deny her the SBP annuity now would be an injustice. 4. Therefore, it would be appropriate to show the applicant submitted a DD Form 2656-7 on 12 June 2002, thereby entitling her to the RCSBP annuity. BOARD VOTE: ___x__ ____x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned by corrected by: a. showing the applicant completed and returned a DD Form 2656-7 and related documents to the proper office on 12 June 2002 and that they were received and processed by the proper office in a timely manner and b. paying the applicant an annuity retroactive to 12 June 2002, the day after the FSM's death. ____________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. ABCMR Record of Proceedings (cont) AR20090016057 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120013255 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1