IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20070010800 


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 requests, in effect, that she be granted a Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).  

2.  The applicant states, in effect, that her daughter was in her freshman year of college at the time of the FSM’s death.  The applicant states that she was told by someone in HRC St. Louis that she was past the statue of limitations to collect SBP.  She looked at the DD Form 1883, which showed that the FSM had elected option C, which is immediate coverage.  The FSM’s National Guard (NG) unit had given her incorrect information.  She believes that she should be awarded SBP back to the FSM’s date of death, because she was given the wrong information.  

3.  The applicant provides the following documents in support of her application:  Self-Authored Letter; a copy of Survivor Benefit Plan Election Certificate (DD Form 1883), Army National Guard Retirement Points History Statement, The Army National Guard (ARNG) Separation Document (NGB Form 22); FSM Death Certificate; and License and Certificate of Marriage.   

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows that he served in the ARNG from 11 September 1968 through 27 December 1989, at which time he was honorably discharged from the ARNG and transferred to the United States Army Reserve (USAR) Retired Reserve.  The NGB Form 22 he was issued at the time shows he held the rank of sergeant first class and that he had completed a total of 21 years, 
3 months, and 15 days of military service.  This document also confirms the FSM's date of birth was 10 February 1949.  

2.  The FSM's Official Military Personnel File (OMPF) contains an ARNG Annual Statement, dated 6 June 1990, which shows that the applicant earned a total of 2306 retirement points and completed 20 years, 3 months, and 17 days of creditable service for retired pay at age 60. 

3.  The FSM's OMPF also contains a SBP Election Certificate (DD Form 1883), dated 8 January 1990, in which the FSM elected full "Spouse and Children" coverage under Option C (Immediate Coverage).  This form also lists the applicant as his wife and confirms the date of the FSM's marriage to the applicant was 11 March 1969.  

4.  On 9 December 2000, the FSM suddenly died at the age of 51.  

5.  On an unknown date, the applicant was told by the FSM’s National Guard (NG) unit that she had to wait until he (the FSM) would have been 60 years old before she could file for SBP.  On 5 July 2007, the applicant contacted the Transition and Separations Branch, HRC-St. Louis which informed her that the FSM had made a Reserve Component (RC) SBP election for Option C (Immediate Coverage); however, because she did not apply for the RCSBP within 6 years the FSM’s death, DFAS has and will deny all claims more than 
6 years old.  She was further informed that her only recourse was to apply to this Board for relief.  

6.  On 28 July 2007, the applicant submitted an appeal to this Board for a correction of the FSM’s military records.   

7.  On 30 April 2008, a member from the ABCMR staff contacted the Transition and Separations Branch, HRC-St. Louis, which confirmed the applicant’s allegations that she was given erroneous information from the FSM’s NG unit about when she could file for RCSBP.   

8.  Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.
9.  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. 

10.  The following three RCSBP options are available under Public Law 95-397:  
(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; (C) Elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

11.  Title 10 of the United States Code, section 11452(a) (1) (B), provides the legal authority for reduction in retired pay for RCSBP participants.  It states, in pertinent part, that in the case of a participant in the RCSBP who provided coverage for an eligible beneficiary during a period before becoming entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay.  

12.  Title 31 U. S. Code, section 3702, also known as the barring act, 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 contained in this section of Title 31, U. S. Code, 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.

13.  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 1999, 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.  The evidence of record confirms the FSM properly elected full "Spouse and Children" RCSBP coverage under Option C (Immediate Coverage) in accordance with the applicable law and regulation on 8 January 1990.  As a result, his intent to provide a SBP annuity for the applicant and their children upon his death was clear.  Further, given this clear election to protect his wife and children after his death, and based on his completion of more than 20 years of qualifying service for retirement purposes, it would be equitable to give appropriate relief.

3.  The evidence of record further shows that the applicant was misinformed about when she could apply for RCSBP by the FSM’s NG unit.  Through, no fault of her own she waited too late to file for RCSBP and as a result the applicant and her children were no longer eligible to receive SBP.  The error was not discovered until July 2007, more than 6 years after the FSM’s death.  The applicant was then informed that she was not eligible for SBP because she waited too long to file (6 year statute of limitation).

4.  Clearly an error occurred in this case, and to allow it to detrimentally affect the applicant and her children is grossly unjust. 

5.  When Congress authorized the creation of the Correction Boards, it specifically spoke of correcting error and removing injustice.  This would appear to be a classic example of an injustice to be corrected that would be consistent with congressional intent.  

6.  In view of the facts of this case, it would be appropriate and serve the interest of justice and equity to show that the applicant submitted the DD Form 1884 on 
2 January 2001, thereby entitling her to the SBP annuity from that date.  DFAS would not begin to collect premiums until age 60 on non-regular SBP participants.

7.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

BOARD VOTE:

____X____  _____X___  _____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 that the FSM’s spouse completed and returned the DD Form 1884 and related documents to the proper office on 2 January 2001 and that they were received and processed by the proper office in a timely manner.

2.  That the applicant, the FSM’s spouse, be advised that DFAS will be instructed to collect any SBP costs due. 

3.  That the applicant, the FSM’s spouse, be paid an annuity based upon the above corrections retroactive to 9 December 2000, the date of 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)                                         AR20070010800



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ABCMR Record of Proceedings (cont)                                         AR20070010800



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