IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012483 


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 her application for Reserve Component Survivor Benefit Plan (RCSBP) benefits be antedated, and that she be paid the RCSBP annuity from the date of her husband's death, the former service member (FSM).  The applicant submitted several applications through her Senator and Representative in Congress

2.  The applicant states, in effect, that she was not properly advised by the FSM's unit concerning her eligibility for RCSBP benefits. 

3.  The applicant provides, in support of her application, a copy of her marriage certificate; a copy of the FSM's death certificate; a copy of a letter from the Chief, Transition and Separations Branch, Human Resources Command, St. Louis (HRC-St. Louis); a copy of a letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay; and a copy of a letter from the Chief Resources Command, HRC-St. Louis to the applicant's Representative in Congress.

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 was born on 29 April 1948.  His Certificate of Marriage from the State of Pennsylvania shows the FSM married the applicant on 27 June 1969.

3.  On 7 July 1990, the FSM's unit forwarded a notification from HRC-St. Louis advising the FSM of his eligibility for retired pay upon application at age 60.

4.  On 31 August 1990, the FSM executed a DD Form 1883 (SBP Election Certificate).  He indicated that he elected spouse and dependent children coverage, and elected Option C (Immediate coverage).

5.  On 1 March 1998, the FSM died at the age of 49.  The DD Form 1300 (Report of Casualty), dated 18 February 2000, shows the FSM died of severe respiratory failure while still assigned as a member of a troop program unit (TPU).  The applicant is shown as the surviving spouse.

6.  In a 10 March 2008 letter to the applicant's Representative in Congress, the Chief, The Adjutant General Directorate, West, Transition and Separations Branch, HRC-St. Louis, indicated that after reviewing the FSM's record it was determined that he enrolled in the RCSBP at the maximum level which would provide the applicant approximately 55 percent of his projected retired pay at the time of his death.  The applicant was eligible for this benefit the day following the FSM's death.  Unfortunately, the applicant was not properly advised by the FSM's unit concerning her eligibility for the RCSBP.  The applicant was provided with the necessary forms to complete and return.

7.  On 14 April 2008, DFAS, Retired and Annuity Pay, responded to the applicant's application for RCSBP benefits.  She was denied the RCSBP annnuity because her application was not received within 6 years of the FSM's date of death.

8.  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 60 to provide an annuity for their survivors should they die before reaching age 60.  Elections 
are made by category, not by name.  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 does not occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for Option C being the more expensive).

DISCUSSION AND CONCLUSIONS:

1.  The applicant and the FSM were married on 27 June 1969.

2.  On 31 August 1990, the applicant properly executed a DD Form 1883 electing option C (Immediate Coverage), spouse and children coverage.  On 1 March 1998, he died while still a member of a TPU.  He was 49 years old at the time of his death.

3.  HRC-St. Louis notified the applicant that she was eligible for RCSBP benefits on the date following the FSM's death and that she had not been properly advised of such by the FSM's unit.  Apparently the applicant was unaware that the FSM had elected Option C for immediate coverage and it seems that she never made application for the RCSBP annuity at the time of the FSM's death based on improper advice provided by the FSM's unit.

4.  Through no fault of the applicant she has been denied the RCSBP annuity to which she is entitled.  Based on the above it would be in the interest of justice to grant the applicant's request by showing that the applicant timely filed to receive the annuity, that DFAS received and timely processed the application, and paying her all monies to which she is entitled.

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 the applicant applied for the RCSBP annuity on 2 March 1998, that DFAS received and processed the application in a timely manner, and that she be paid the RCSBP annuity retroactive to the date of the FSM's death.



      ________XXX______________
               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)                                         AR20080012483



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ABCMR Record of Proceedings (cont)                                         AR20080012483



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