IN THE CASE OF:
BOARD DATE: 14 July 2009
DOCKET NUMBER: AR20090003378
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 be determined to be entitled to the Survivor Benefit Plan (SBP) as a forgotten widow based upon the service of her deceased spouse, a former service member (FSM).
2. The applicant states, in effect, that she was the Retired Serviceman's Family Protection Plan (RSFPP) beneficiary.
3. The applicant provides a copy of the FSM's death certificate, a marriage license, and the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation) in support of her application.
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 applicants 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 applicants 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 5 August 1921. He enlisted in the Army Air Force on
8 March 1941 and was honorably discharged on 7 September 1945. He enlisted in the U.S. Army Reserve (USAR) on 8 September 1945. He and the applicant were married on 5 December 1945.
3. The FSM was appointed a warrant officer on 28 December 1956 in the USAR.
4. The FSM's 20-year letter is dated 14 September 1971.
5. The FSM was promoted to chief warrant officer four on 28 December 1971.
6. The FSM died on 7 June 1977 prior to reaching age 60. He was still a member of the USAR at the time of his death.
7. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
8. Public Law 95-397, the Reserve Component Survivor Benefit Plan (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.
9. Public Law 105-85, enacted 18 November 1997, provided for an SBP annuity to be paid to the qualified surviving spouse of each member of the uniformed services who:
(A) died before 21 March 1974 and was entitled to retired pay on the date of death; or
(B) was a member of a reserve component during the period beginning
21 September 1972 and ending on 1 October 1978, and at the time of death would have been entitled to retired pay but for the fact he or she was under 60 years of age. The surviving spouse must not have ever remarried or otherwise be entitled to SBP or Dependency and Indemnity Compensation. Annuities under this section would be paid for months beginning after the month in which the law was enacted. The authority to pay annuities under this section was to expire on 30 September 2001.
10. Public Law 106-65, enacted 5 October 1999, amended Public Law 105-85. It extended coverage under that law to surviving spouses of all "gray-area" retirees and repealed the expiration authority. The amendment as pertains to payment of annuities to surviving spouses of "gray-area" retirees was effective
1 October 1999.
DISCUSSION AND CONCLUSIONS:
The applicant met the eligibility criteria to apply for the SBP as a "forgotten widow" when the original law was passed in November 1997. It would be equitable to correct the records to show the applicant applied for the SBP as a "forgotten widow" on the earliest date provided for by law.
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 she applied for the SBP as a "forgotten widow" on the earliest date provided for by law and that she be paid the SBP, provided she otherwise meets the eligibility criteria, retroactive to the earliest date provided for by law.
_______ _ _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) AR20090003378
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ABCMR Record of Proceedings (cont) AR20090003378
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