IN THE CASE OF: BOARD DATE: 8 July 2014 DOCKET NUMBER: AR20130017878 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 widow of a deceased former service member (FSM), requests correction of his records to show a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) was filed in a timely manner. 2. The applicant states: a. she and her husband believed that she was covered by the SBP. After his death in 2005, she received a letter from the U.S. Army Human Resources Command (HRC) saying she was covered, but when she applied for coverage in 2013 HRC informed her that she was not covered. b. they were married in 1978 and were married on the date of his death in 2005. The FSM was in the U.S. Army Reserve (USAR) and retired in the rank of lieutenant colonel on 1 July 2003 with 28 years and 28 days of qualifying service for retirement. c. the FSM received his 20-year letter in September 1997. She does not remember reading this letter and she was not aware of the 90-day election rule for the SBP. d. the FSM signed the DD Form 1883 on 22 March 1998 requesting Option B, spouse only SBP coverage which would pay the SBP benefit to her after his 60th birthday if he died before that date. No one at the Defense Enrollment Eligibility Reporting System office said anything about the 90-day election window. They never received any other correspondence from the Defense Finance and Accounting Service (DFAS) regarding this election while the FSM was alive. e. after the FSM's death on 29 April 2005 at age 51, she notified DFAS of his death and she received a letter from HRC acknowledging the FSM's SBP election and their intent to begin the SBP payments in October 2013. f. in March 2013, she contacted DFAS and commenced the process to begin receiving SBP payments. She received a letter in March 2013 from HRC informing her the FSM did not submit the DD Form 1883 within 90 days of the 20-year letter and she was not eligible to receive the SBP. It also stated the July 2005 letter from HRC "has been determined to be an error." This letter further stated she could apply to this Board to request corrective action. g. her husband was diagnosed with cancer in July 2003. In all her conversations with him on this matter during his nearly two-year illness he assured her that she was covered under the SBP. She had no reason to believe she was not covered. That benefit was discussed in their financial planning for her and their children knowing he would not survive this illness. He explicitly instructed her to apply for the survivor benefit in the year of his 60th birthday. Her husband was a good record keeper and very conscientious about his affairs. He would not knowingly have left her without the survivor benefit. h. a family friend provided her with a letter explaining his conversations with her husband. He specifically recalls discussing her SBP coverage with her husband before his death. According to the family friend, her husband believed that she was covered. 3. The applicant provides: * FSM's death certificate * Certificate of marriage * FSM's chronological statement of retirement points * Reassignment orders * Notification of eligibility for retired pay at Age 60 (Twenty Year Letter) * DD Form 1883 * Letters, dated 8 July 2005 and 29 March 2013 from HRC * Letter, dated 8 July 2013, from a retired colonel CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM was born on 26 October 1953. He and the applicant married on 28 January 1978. Having prior commissioned service in the Regular Army, he was appointed as a captain in the USAR in 1981. 3. On 3 September 1997, he was issued his notification of eligibility for retired pay at age 60. Paragraph 4 of this memorandum pertains to the Reserve Component SBP (RCSBP) and the DD Form 1883 and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. This form also states "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits." 4. The applicant provides a DD Form 1883, dated 22 March 1998, which shows the FSM enrolled in the SBP and elected spouse coverage, full amount, and Option B (Age 60). 5. He was transferred to the Retired Reserve on 1 July 2003 in the rank of lieutenant colonel. 6. On 29 April 2005, the FSM died at the age of 51. His death certificate shows he was married to the applicant at the time of his death. 7. The applicant provides a letter, dated 8 July 2005, from HRC which states: * upon review of the FSM's RCSBP file, they found a DD Form 1883 filed on 22 March 1998 * her spouse elected Option B to provide an annuity for her beginning on his 60th birthday should he die before that date * an annuity will be provided for her effective 26 October 2013 provided she does not remarry before her 55th birthday 8. On 29 March 2013, HRC denied the applicant’s request for survivor benefits annuity. The denial letter states: * the FSM was issued his 20-year letter on 3 September 1997 which means he had until 2 December 1997 to submit a DD Form 1883 * his DD Form 1883 was signed on 22 March 1998 which was not within the required 90-day time frame * she is not entitled to SBP coverage * the letter, dated 8 July 2005, stating she would be eligible for an annuity beginning on 26 October 2013 has been determined to be an error 9. 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. 10. Public Law 95-397, the 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 were 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. 11. Before the law was amended in October 2000, 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 wait until he/she applied for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of option A, decline enrollment and choose at age 60 whether to start SBP participation. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions were carefully considered. Although the FSM failed to make an RCSBP election within the required 90 calendar day time frame, it appears HRC accepted the FSM's election, never informed him of any problems, and thereby effectively denied him the opportunity to make other insurance arrangements to financially provide for his family. 2. It would be equitable to correct the FSM's records to show he made a timely election of spouse coverage in 1997. 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 be corrected by showing the FSM's DD Form 1883 for spouse coverage was timely received and processed by the appropriate offices and by paying the SBP annuity to his spouse retroactive to 30 April 2005 the day after his 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) AR20130017878 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130017878 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1