RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 March 2008
	DOCKET NUMBER:  AR20070011932 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased spouse, a service member (SM), be corrected to show she timely applied for the annuity from the SM’s Reserve Component Survivor Benefit Plan (RCSBP) election.

2.  The applicant states that she was unaware of any benefits she may have been entitled to upon the death of the SM.  All correspondence that was sent in regard to his death was sent to the address of her mother-in-law.

3.  The applicant provides an additional statement, dated 14 August 2007; a    DD Form 1884 (Application for Annuity under the Retired Serviceman’s Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP)); their marriage certificate; and a Letter of Testamentary.

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 SM enlisted in the Army National Guard on 9 August 1972.  He and the applicant married on 25 January 1980.  His notification of eligibility for retired   pay at age 60 (his 20-year letter) was prepared on 27 October 1993.  On           16 December 1993, he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) and elected to participate in the RCSBP for spouse only coverage, full base amount, option C.

3.  The SM died on 1 April 1994.  

4.  On 19 April 1994, the applicant completed a DD Form 1884, applying for the RCSBP annuity.  By letter dated 2 May 1994, subject:  SBP Annuity Claim for Beneficiary of (the SM), Deceased: 1 April 1994, the North Carolina National Guard informed the Commander, Army Reserve Personnel Center that the SM died and the applicant, residing at ____, Lumberton, NC, was his beneficiary.
5.  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.  To retain annuity eligibility, a surviving spouse cannot remarry before age 55.  If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce, or annulment.

6.  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 are 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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

7.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  At least one of the reasons behind the barring statute was not of major importance in this case.  The applicable records were readily accessible and the applicant’s case was not difficult to prove.  The SM had elected RCSBP spouse only coverage, option C, and the applicant was his spouse at the time he died.  The applicant completed a DD Form 1884, and the North Carolina National Guard notified the Army Reserve Personnel Center in a timely manner that the SM had died and that the applicant was his SBP beneficiary.  For an unknown reason, the DD Form 1884 was never processed.

2.  The records should be corrected at this time to show that the applicant applied for the SBP annuity in a timely manner and to pay her the annuity, provided she was/is otherwise eligible (e.g., not remarried before age 55), retroactive to the date of the SM’s death.


BOARD VOTE:

__slp___  __ym____  __eem___  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 that the applicant applied for the SBP annuity in a timely manner and to pay her the annuity, provided she was/is otherwise eligible, retroactive to the date of his death.




__Shirley L. Powell___
          CHAIRPERSON




INDEX

CASE ID
AR20070011932
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
137.00
2.

3.

4.

5.

6.