DOCKET NUMBER:  AR20090003320 


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, correction of her husband's records, a deceased former service member (FSM), to show she filed a claim for a survivor benefit annuity on the day following the FSM's death and payment of unpaid benefits from that date.  The applicant also requests, in effect, any other pay entitlements or future retirement benefits that she may be eligible for and for the Board to forward her request to the Casualty Assistance Office for determination on Group Service Military Life Insurance or any other entitlements.

2.  The applicant states that following the FSM's death on 30 November 1999, the funeral home informed her that they had contacted the Army and she received a check for $300.00 and a gravestone.  She states that she assumed the Army knew of the FSM's death because of this.  She also states that the FSM's brother, who was serving in the Regular Army, told her that he checked and she was not eligible for anything else.  When she received the FSM's retirement papers prior to his 60th birthday, she contacted the Human Resources Command (HRC), St. Louis, and spoke with a staff member in the Survivor Benefits section.  This staff member told her that the funeral home must have contacted the Department of Veterans Affairs and not the Army.

3.  The applicant provides the FSM's death certificate, her son's birth certificate, her certificate of marriage to the FSM, DD Form 2656-7 (Verification for Survivor Annuity), DD Form 1883 (Survivor Benefit Plan Election Certificate), ARPC Form 249-E (Chronological Statement of Retirement Points), Internal Revenue Service Form W4-P (Withholding Certificate for Pension or Annuity Payments), Standard Form 1199A (Direct Deposit Sign-Up Form), DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), and DD Form 2788 (Child Annuitant's School Certification).

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows that he enlisted in the U.S. Army Reserve on 6 February 1969 and was awarded the military occupational specialty 64A (Light Vehicle Driver).  He remained in a U.S. Army Reserve troop program unit status until he was honorably discharged on 18 April 1990 after completing more than 21 years of service.  The highest rank he attained while serving was sergeant first class/pay grade E-7.  His date of birth was 25 July 1949.

2.  The applicant provided a marriage certificate which shows she and the FSM were married on 9 January 1981.

3.  On 16 September 1989, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  The applicant provides a copy of a DD Form 1883, dated 22 March 1990, which shows that the FSM elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only, immediate coverage based on the full amount of retired pay.  The Board staff contacted the Survivor Benefits section at HRC, St. Louis, and confirmed that the FSM's records contained a DD Form 1883 with an Option C election, which was completed within the prescribed time frame.

5.  The applicant provided a death certificate showing the FSM's marital status as married, the applicant as his spouse, and that he died on 30 November 1999.

6.  Public Law 92-425 enacted 21 September 1972 established the Survivor Benefit Plan (SBP).  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

7.  Public Law 95-397 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) defer or decline to make an SBP election until beginning to draw retired pay at age 60; (B) provide an annuity beginning on the retiree's 60th birthday (if death occurs before age 60), or upon retiree's death (if age 60 or older upon death); (C) provide an annuity beginning on the day after retiree's death, regardless of retiree's age at death.  Once a member elects either Option B or C in any category of coverage, that election is irrevocable.

8.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows that the FSM's records contained a valid RCSBP election at the time of his death.

2.  Therefore, since the evidence clearly shows that the applicant would have been otherwise eligible, and it must be presumed that had the applicant been aware of her husband's SBP election that she would have filed a claim for SBP in a timely manner, it would be in the interest of justice for the FSM's records to be corrected to show that his widow applied for the SBP annuity (spouse only, based on full amount of retired pay, and immediate annuity coverage) effective 1 December 1999, the day following the date of the FSM's death.  It would be inequitable to deny the applicant the SBP annuity because of the passage of time.

3.  The Board's purpose is to correct errors or injustices in military records.  It is not an investigative or administrative body.  Since there is a presumption that the applicant has not exhausted all administrative options available to her, the Board is unable to assist with her requests for any other pay entitlements or future retirement benefits that she may be eligible for, or for the Board to forward this request to the Casualty Assistance Office for determination on eligibility for Group Service Military Life Insurance or any other entitlements.  Therefore, this portion of the request will not be discussed further in these proceedings.

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 timely applied for the RCSBP annuity and that she be paid the annuity based on the FSM's election to participate in the RCSBP beginning on the day following the FSM's death on 30 November 1999.



      ____________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)                                         AR20090003320



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ABCMR Record of Proceedings (cont)                                         AR20090003320



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