IN THE CASE OF:	  

		BOARD DATE:	       25 November 2008

		DOCKET NUMBER:  AR20080009638 


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 the records of her deceased spouse, a former service member (FSM) be corrected to show she timely applied for the annuity from the FSM’s Reserve Component Survivor Benefit Plan (RCSBP) election.

2.  The applicant states that she was unaware of the RCSBP and her entitlement to benefits until just recently.  She contends that she was not notified of her eligibility to receive an RCSBP annuity.

3.  The applicant provides copies of the FSM's RCSBP Election Certificate 
(DD Form 1883), certificate of death, certificate of marriage, and Retirement Points History Statement.

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.  On 29 May 1971, the applicant and the FSM were married in the state of Minnesota.

3.  On 25 June 1971, the FSM was appointed a second lieutenant in the Regular Army.  He was promoted to first lieutenant on 9 June 1974 and was released from active duty on 21 December 1975.

4.  On 10 January 1976, the FSM was appointed a captain in the Army National Guard.  He served through a series of assignments and attained the rank of lieutenant colonel, pay grade O-5.

5.  On 14 July 1993, the FSM elected RCSBP coverage for spouse and children based on his full amount of retired pay.  He selected option C, immediate coverage.

6.  On 31 August 1993, the FSM was discharged from the Army National Guard and transferred to the United States Army Reserve Control Group (Retired Reserve).  He had completed 20 years, 2 months, and 6 days of creditable service for retired pay.  

7.  On 29 October 1997, the FSM died.  He was 47 years of age.

8.  The Defense Finance and Accounting Service (DFAS) records show the applicant submitted an annuity packet to Retired Pay Branch on 8 February 2007.

9.  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.

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 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.

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.  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 and children coverage, option C, and the applicant was his spouse at the time he died.  The applicant submitted an annuity packet in 2007 when she discovered her eligibility for this entitlement.  

2.  The records should be corrected at this time to show that the applicant applied for the RCSBP 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 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 showing that the applicant applied for the RCSBP annuity in a timely manner and to pay her the annuity, provided she is otherwise eligible (e.g. not remarried before age 55), retroactive to 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)                                         AR20080009638



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ABCMR Record of Proceedings (cont)                                         AR20080009638



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