IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080007606 


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, as the widow of a deceased service member (SM), requests, in effect, that the records be corrected to show she applied for the Reserve Component Survivor Benefit Plan (RCSBP) annuity in a timely manner.

2.  The applicant states that she was wrongfully advised to wait until what would have been the SM’s 60th birthday to apply for the annuity.

3.  The applicant provides their marriage license; the SM’s death certificate; the SM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a statement of retirement points for the SM; the SM’s notification of eligibility for retired pay at age 60 (his 20-year letter); an SBP annuity application packet; and a letter, dated 3 March 1999, from the U. S. Army Reserve Personnel Command (AR-PERSCOM); and a sworn affidavit.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states that the SM completed 20 years of qualifying service for a Reserve retirement on 6 May 1990, and he died in a helicopter crash on 30 May 1990 prior to making his RCSBP election.  The SM’s 20-year letter was not issued until 9 months after he died.  The SM’s unit told the applicant she did not have to do anything to receive the SBP until the SM would have reached age 60. However, at that time, in 1999, she was informed that the statute of limitations had run out on her claim.


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 was born on 27 August 1939.  After having had prior enlisted service, he was appointed a warrant officer one in the U. S. Army Reserve.  

3.  The SM and the applicant married on 5 September 1987.

4.  The SM’s statement of retirement points shows he completed 20 years,          9 months, and 11 days of qualifying service for a Reserve retirement as of retirement year ending 6 May 1990.

5.  On 30 May 1990, the SM was killed while performing his civilian job.

6.  The SM’s 20-year letter was dated 21 February 1991.  

7.  The applicant applied for the SBP annuity in 1999; however, AR-PERSCOM informed her that the statute of limitations on her claim ran out on 30 May 1996.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that active duty 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.

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.  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.  

10.  Title 10, U. S. Code, section 1448(f)(1)(A)(i), states the Secretary concerned shall pay an RCSBP annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies before receiving his 20-year letter.

11.  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.  It appears the applicant was given erroneous advice when the SM died.  She did not have to wait until the SM would have turned age 60 to apply for the SBP annuity.  She would have been eligible to apply for it as soon as the SM’s        20-year letter, issued in February 1991, established his entitlement to retired pay.

2.  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.  

3.  It would be appropriate to show that the applicant applied for the SBP annuity on 1 March 1991, thereby entitling her to the SBP annuity provided she meets all other eligibility criteria. 

BOARD VOTE:

__xx____  ___xx___  ___xx___  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 applicant applied for the SBP annuity on 1 March 1991 and that her application was received and processed by the proper office in a timely manner; and

     b.  paying to the applicant the SBP annuity based upon the above correction retroactive to the date of the SM’s death providing she is otherwise eligible.



      ________xxxx__________
               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)                                         AR20080007606



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ABCMR Record of Proceedings (cont)                                         AR20080007606



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