IN THE CASE OF:	

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012264 


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 receive 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 at the time of the FSM’s death, she received no information regarding how to apply for his retirement benefits and as a result she inquired personally at the National Guard Armory.  She indicates that she was told that their son was too old and that she was not old enough to receive any benefits at that time.  She also states that because she knew of no other dates, she assumed she would be eligible to receive his retirement on his 60th birthday.  She further indicates that without complaining, the FSM gave his life to serving the Army and providing for his family with minimal leisure time, only to die shortly after his retirement.  She states that she should not have to go all she has to receive what her deceased husband provided for her through his military service.  

3.  The applicant provides the following documents in support of her application: Self-Authored Statement; FSM Death Certificate; Verification for Survivor Annuity (DD Form 2656-7); Marriage Certificate; Notification of Retirement Eligibility
(20-Year Letter); Retirement Point History Statement; and Withholding Certificate for Pension or Annuity Payments (Form W-4P).


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's military records show he was born on 11 April 1949, and the FSM and applicant were married on 5 August 1972.

3.  The FSM's record shows that after having prior active duty service in the Army of the United States (AUS) and inactive service in the United States Army Reserve (USAR), on 13 March 1976, the applicant enlisted in and entered the Mississippi Army National Guard (MSARNG).

4.  The FSM's Official Military Personnel File (OMPF) includes a 20-Year Letter, dated 24 June 1994, which included a SBP summary statement as an enclosure.

5.  The FSM’s OMPF also includes an SBP Election Certificate (DD Form 1883), dated 12 September 1994.  In Section II (Marital, Dependency, and Election Status) of this form, the FSM elected Reserve Component SBP (RCSBP) Option C (Immediate Coverage) for “Spouse and Children” at the “Full” base amount.

6.  On 12 March 1995, after completing 21 years of qualifying military service for Reserve retirement at age 60, the applicant was honorably retired from the MSARNG and transferred to the USAR Control Group (Reinforcement).

7.  On 21 July 1995, the FSM died at the age of 46.

8.  During the processing of this case, a staff member of the Board contacted the Defense Finance and Accounting Service (DFAS) to determine if the applicant ever received an SBP annuity.  On 18 September 2008, a DFAS official confirmed the applicant never received an annuity.


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.  The governing law, as amended, stipulates that remarriage before age 55 suspends coverage or annuity payments.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be granted an annuity as a result of the FSM’s election of RCSBP coverage made prior to his death has been carefully considered and found to have merit.

2.  The evidence of record confirms that the FSM elected to participate in the RCSBP on 12 September 1994, after receiving his 20-Year Letter.  It further shows he elected “Spouse and Children” Option C (Immediate Coverage) at the full amount.  The FSM retired on 12 March 1995, subsequently died on 21 July 1995, and DFAS officials confirm that the applicant was never paid an SBP annuity as a result of the FSM’s death.  Accordingly, it would be appropriate to provide the applicant the SBP annuity that she is entitled to due from the date of the FSM's death.  

3.  The name used by the applicant in her application to this Board indicates a possible remarriage.  If this is the case, payment of the SBP annuity is subject to over age 55 remarriage provisions of the law and should be applied by DFAS.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  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 providing the applicant the Survivor Benefit Plan annuity due based on the Reserve Component SBP election made by the Former Service Member’s election of coverage, from 21 July 1995, the date of his death, minus any premiums that may be due.



      ________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)                                         AR20080012264



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ABCMR Record of Proceedings (cont)                                         AR20080012264


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