IN THE CASE OF: BOARD DATE: 2 April 2015 DOCKET NUMBER: AR20140010667 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 that the 6-year statute of limitations pertaining to her Reserve Components Survivor Benefit Plan (RCSBP) annuity claim to be waived. 2. The applicant states she never received any correspondence from the Army regarding survivor benefits after her husband's death. She contends that she was not aware of the 6-year statute of limitations to file a claim for benefits. 3. The applicant provides: * DD Form 2656 (Data for Payment of Retired Personnel), undated * DD Form 2656-5 (RCSBP Election Certificate), dated 16 June 2014 * DD Form 2656-7 (Verification for Survivor Annuity), dated 10 April 2014 * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * a letter from the U.S. Army Reserve Personnel Command, Transition and Separations Branch, dated 19 November 2002 * Standard Form 1199A (EG) (Direct Deposit Sign-Up Form) * a letter from the U.S. Army Human Resources Command (HRC), Retired Pay Branch, undated * a letter from HRC, Reserve Components Retirements, dated 3 April 2014 * document titled "RCSBP for the U.S. Retired Armed Forces-Information Provided from the Individual Services," dated 19 November 2002 * Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments) * Certificate of Death * a copy of her social security card * Certificate of Marriage * Consular Report of Birth Abroad * DD Form 1884 (Application for Annuity Under the Retired Serviceman's Family Protection Plan and/or SBP) 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 27 September 1959. He was appointed as a Reserve commissioned officer of the Army on 21 April 1984. He had 4 years of prior enlisted service in the Regular Army. 3. The FSM and the applicant were married on 17 August 1995. 4. On 28 July 1999, the U.S. Army Reserve Personnel Command (AR-PERSCOM, later redesignated as the U.S. Army HRC) issued the FSM a 20-Year Letter. This letter notified him that he had completed the required years of service to be eligible for retired pay at age 60. This letter further informed him that: a. He was entitled to participate in the RCSBP, as established by Public Law 95-397. b. RCSBP enabled him to provide an annuity for his spouse and other eligible beneficiaries. c. He had, by law, only 90 calendar days from the date he received the notice to submit a DD Form 1883 (SBP Election Certificate). d. If he did not submit an election within 90 calendar days, he would not be entitled to SBP coverage until he applied for retired pay at age 60. e. If he did not elect coverage and should die before reaching age 60, his survivor(s) would not be entitled to benefits. 5. The FSM's DD Form 1883 is not available; however, a form titled, "RCSBP for the U.S. Retired Armed Forces - Information Provided from the Individual Services," prepared by an HRC representative on 19 November 2002, indicates the FSM signed a DD Form 1883 on 14 November 1999. The form also shows he elected RCSBP Option C, full coverage. 6. The FSM died on 28 October 2002. 7. Information obtained from the HRC Soldier Management System indicates the applicant inquired about the survivor benefits annuity on or around 14 November 2002. 8. In a letter addressed to the applicant, dated 19 November 2002, Transition and Separations Branch, AR-PERSCOM, informed her that the Defense Finance and Accounting Service (DFAS) had been notified of her spouse's death. She was also informed that she would be contacted by DFAS regarding the procedures for applying for the SBP annuity. 9. In a letter dated 3 April 2014, the Reserve Components Retirements Branch at HRC informed the applicant of the requirement to complete a DD Form 2656-7 in order to obtain benefits based on the FSM's service. On 10 April 2014, she completed and signed the DD Form 2656-7. 10. In an undated letter, the Chief, Retired Pay Branch, HRC, informed the applicant that due to the 6-year statute of limitations, her claim was barred and that the Reserve Components Retirements Branch did not have jurisdiction to consider it. She was advised to apply to this Board. 11. The forms provided by applicant are all dated between April and June 2014. 12. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Components Soldiers who qualified for 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: a. Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation; b. Option B: elect that a beneficiary receives an annuity if they die before age 60, but delay payment until the date of the member's 60th birthday; and c. Option C: elect that a beneficiary receives an annuity immediately upon their death if before age 60. 13. Title 31 U. S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the 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, 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. 14. On 17 October 1998, the National Defense Authorization Act for Fiscal Year 1999 (NDAA FY 99) became law. Section 545(c) required the Department of Defense (DOD) to submit a report to Congress concerning the 6-year statute of limitations contained in Title 31, U. S. Code, section 3702(b), commonly referred to as the barring act. The Secretary of Defense was to make a recommendation whether it was appropriate for the Secretaries of the military departments to have authority to waive that limitation in selected cases involving implementation of decisions of the Secretary of a military department under chapter 79 (Correction of Military Records) of Title 10, U. S. Code. In its report, DOD did not recommend that the Secretaries of the military departments have specific statutory authority to waive the 6-year limitation in Title 31, U. S. Code, section 3702 in such cases. DOD noted that there presently exists in current law substantial authority to counteract the effects of the statute of limitations in the context of military records corrections. DOD also noted that Title 10, U. S. Code, section 1552(g), which was amended in 1998 to expand the definition of “military record,” now provides discretionary authority to change records to show a valid submission of a claim by a member or beneficiary within the period prior to expiration of the statute of limitations. Therefore, section 1552 already contains the authority necessary to take action that will, in effect, waive the 6-year limitation in a wide spectrum of cases. DISCUSSION AND CONCLUSIONS: 1. In accordance with Title 10, U. S. Code, section 1552(g), as cited in the DOD NDAA FY 99, Section 545(c) Review of the Barring Act Report, the Board may change records to show a valid submission of a claim by a member or beneficiary within the period prior to the expiration of the statute of limitations. 2. Based on the evidence of record, the FSM elected participation in the RCSBP. It also appears the applicant was/is fully eligible for the annuity based on the correspondence from AR-PERSCOM/HRC; however, these agencies are unable to continue processing her claim based on the 6-year statute of limitation. Therefore, at least one of the reasons behind the barring statute is not of major importance in this case. The applicable records are readily accessible and the FSM's spouse's case is not difficult to prove. 3. Based on the foregoing, it would be appropriate to show the applicant submitted the DD Form 1884 on 29 October 2002, thereby entitling her to the SBP annuity retroactive to 29 October 2002, the day after the FSM's death. 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: a. showing that the FSM's spouse completed and returned the DD Form 1884 and related documents to the proper office on 29 October 2002 and that they were received and processed by the proper office in a timely manner; b. that the applicant be advised that DFAS will be instructed to collect any SBP costs due; and c. that the applicant be paid an annuity based upon the above corrections retroactive to 29 October 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) AR20140010667 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140010667 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1