IN THE CASE OF:	  

		BOARD DATE:	       9 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090006310 


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 that the records of her deceased spouse, a former service member (FSM), be corrected to show that she applied in a timely manner to receive payment of her Survivor Benefit Plan (SBP) benefits.

2.  The applicant states that her husband passed away on 26 July 2001 before he turned 60 years of age.  She also states she called and left several messages at the Office of the Deputy Chief of Staff for Personnel, Tennessee Army National Guard, during calendar year 2002; however, she never received a call back.  She adds that she did not know who else to contact and was made aware of a 6-year rule when she recently contacted the U.S. Army Human Resources Command.

3.  The applicant provides, in support of her request, copies of three memoranda, a DD Form 1883 (Survivor Benefit Plan Election Certificate), their marriage license, and her husband's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military service records show that he had prior active service in the U.S. Marine Corps from 17 August 1960 through 14 August 1964 and in the U.S. Marine Corps Reserve from 15 August 1964 through 16 August 1966.

2.  The FSM's military service records show that he enlisted in the Army National Guard (ARNG) on 5 August 1977.  His date of birth is recorded as 11 April 1942. 

3.  Headquarters, Tennessee Army National Guard (TN ARNG), Nashville, Tennessee, memorandum, dated 8 October 1993, notified the FSM that having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, chapter 67.

4.  The FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged on 4 December 1993 and transferred to the U.S. Army Control Group (Retired Reserve).  At the time he had completed 16 years and 4 months of net service this period and 22 years and 4 months of total service for pay.

5.  In support of her application, the applicant provides the following documents.

   a.  Headquarters, TN ARNG, Nashville, Tennessee, memorandum, dated
12 October 1993, that forwarded a copy of the "Twenty Year Letter" to  the FSM.

   b.  Headquarters, TN ARNG, Nashville, Tennessee, memorandum, dated
24 August 1994, that forwarded a copy of the FSM's SBP Election Certificate to him.  The FSM's SBP Election Certificate, dated 17 November 1993, shows, at that time, he was married to Wilda J. L__________; had no dependent children; elected "spouse only" coverage based on full gross pay; and Option B (Age 60).  The FSM, applicant, and a witness placed their signatures on the document.

	c.  A Georgia Department of Human Resources, Marriage License, that shows the FSM and applicant were married on 25 October 1963.  At the time the applicant was 21 years of age.

   d.  A Georgia Department of Human Resources, Death Certificate, that shows the FSM died on 26 July 2001 and his wife (i.e., the applicant) was the informant. At the time both the FSM and the applicant were 59 years of age.

6.  In connection with the processing of this case, the Military Pay Operations - Cleveland, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify the status of the FSM's participation in the Reserve Component SBP (RCSBP) and, based on the FSM's death, details of any inquiries/requests for payment of SBP benefits.  A DFAS official confirmed that DFAS did not have any information pertaining to the FSM relating to his SBP.

7.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies before age 60, but delay payment of it until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon the service member's death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her deceased spouse should be corrected to show that she applied in a timely manner to receive payment of her SBP benefits.

2.  The evidence of record shows that the FSM received his 20-year letter with the accompanying SBP forms in 1993.  On 17 November 1993, the FSM confirmed he was married to Wilda J. L__________ and he elected "spouse only" coverage based on full gross pay with Option B (i.e., that his spouse receive an annuity if he died before age 60, but delay payment of it until the date of the FSM's 60th birthday).

3.  The FSM died on 26 July 2001 at the age of 59, approximately seven months before his 60th birthday.  The Certificate of Death shows, in pertinent part, that the applicant was married to the FSM at the time of his death.  The applicant was 59 years of age at the time.

4.  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 FSM had elected RCSBP spouse only coverage, Option B, and the applicant was his spouse at the time he died.  Thus, records show the applicant did not remarry prior to age 55.
5.  The evidence of record indicates the applicant notified the TN ARNG of the FSM's death in a timely manner; however, it appears her efforts did not meet with any success regarding application for the SBP annuity.  Specifically, there is no evidence that a DD Form 1884 (Application for Annuity under the Retired Serviceman's Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP)) was submitted and/or processed.

6.  In view of the foregoing, as a matter of justice, the FSM's records should be corrected at this time to show that the applicant applied for the SBP annuity in a timely manner and to pay her the annuity retroactive to the day the FSM would have turned age 60.

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 SBP annuity in a timely manner and to pay her the annuity retroactive to the day the FSM would have turned age 60.



      _______ _   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)                                         AR20090006310



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ABCMR Record of Proceedings (cont)                                         AR20090006310



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