BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090007029 


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) annuity.

2.  The applicant states that her husband passed away on 17 October 1996 before he turned 60 years of age.  She also states she was of the understanding that the SBP annuity she would receive was not in effect until the time that her husband would have reached age 60.

	a.  She states that prior to her husband's passing, their home was struck by fire and important papers were destroyed.

	b.  On 12 February 2009, she contacted the Vermont Army National Guard and asked what she had to do in order to begin receiving her SBP annuity on the 60th anniversary of her husband's birth.  At that time, she was informed she was covered under the Reserve Component SBP (RCSBP), Option C (Immediate coverage), not Option B (Defer).

	c.  Upon learning of her RCSBP immediate coverage, she applied for her SBP annuity.  She initially thought the 6-year statute of limitations meant she would only be eligible for 6 years of back pay.  However, when she received notice that she was not eligible for the SBP annuity, she learned it was because the 6-year statute of limitations for submission of her claim had expired.

	d.  The applicant concludes by stating she believes denial of her claim is an injustice because her husband elected RCSBP immediate coverage to ensure that she was taken care of in the event of his death.

3.  The applicant provides copies of a DD Form 1883 (Survivor Benefit Plan Election Certificate), their marriage license, her husband's death certificate, Army National Guard Retirement Points History Statement - Application for Retirement Pay, DD Form 2656-7 Test (Verification for Survivor Annuity), DD Form 2762 (Direct Deposit Authorization), Form W-4P (Withholding Certificate for Pension or Annuity Payments), and three memoranda in support of her request.

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 service records show that he had prior service in the U.S. Marine Corps Reserve (USMCR) beginning 7 July 1970, active service in the U.S. Marine Corps from 30 November 1970 through 29 November 1973, and service in the USMCR from 30 November 1973 through 4 January 1974.

3.  The FSM's military service records show that he enlisted in the Army National Guard on 5 January 1974.  His date of birth is recorded as 21 March 1951.

4.  Headquarters, Vermont Army National Guard (VTARNG), Colchester, VT, memorandum, dated 6 June 1991, 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.

5.  A DD Form 1883, dated 12 August 1991, shows the FSM indicated he was married to Carolyn R. H____ on 22 March 1975 and he had two dependent children.  He elected spouse-only coverage based on the full amount of his retired pay with RCSBP Option C.  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the FSM placed a checkmark in the "No" block.  The DD Form 1883 also shows that the FSM, the applicant, and a witness each placed their signature on the document.

6.  The applicant provides the following documents in support of her application:

	a.  a State of Vermont Certification of Marriage that shows the FSM and the applicant were married on 22 March 1975.

	b.  a State of Vermont Certificate of Death that shows the FSM died on 17 October 1996 and his wife [the applicant] was the informant.

	c.  an Army National Guard Retirement Points History Statement - Application for Retirement Pay, dated 13 February 2009, that shows the FSM earned 2,547 total retirement points for retired pay and he completed 22 years of creditable service for retired pay.

	d.  a Verification for Survivor Annuity, Direct Deposit Authorization, and Withholding Certificate for Pension or Annuity Payments, all dated 13 February 2009, that were submitted to the Defense Finance and Accounting Service (DFAS) by the applicant in support of her claim for her RCSBP annuity.  (The FSM's date of death is incorrectly recorded on the Verification of Survivor Annuity as 20 October 1996.)

	e.  two memoranda, dated 2 March 2009 and 5 March 2009, from Headquarters, U.S. Army Human Resources Command, Transition and Separations Branch, St. Louis, MO; and a memorandum, dated 5 March 2009, from DFAS, U.S. Military Pay, London, KY.  These documents, in pertinent part, notified the applicant that her request for RCSBP annuity based on the military service of the FSM could not be processed because there was no record that she filed a claim for the benefit within 6 years of the death of the FSM.  She was also informed that Title 31, U.S. Code, section 3702(b), limits the time for filing of claims against the United States to 6 years.  Therefore, she has completely lost her right to the benefit and her only recourse is to apply to the ABCMR to review her case.

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.  

7.  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, an FSM, should be corrected to show that she applied in a timely manner to receive payment of her SBP benefits.

2.  The FSM received his 20-year letter with the accompanying SBP forms in 1991.  On 12 August 1991, the FSM confirmed he was married to Carolyn R. H____ and he elected spouse-only coverage based on full gross retired pay with Option C, immediate coverage (i.e., that his spouse receive an annuity if he died before age 60).

3.  The FSM died on 17 October 1996 at the age of 45.  The Certificate of Death shows, in pertinent part, that the applicant was married to the FSM at the time of his death.

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 C, and the applicant was his spouse at the time he died.

5.  The evidence of record shows the applicant believed the FSM elected RCSBP Option B to defer coverage (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).  However, upon contacting the VTARNG in February 2009 to ensure receipt of her SBP benefits on the 60th anniversary of the FSM's birth, the applicant learned she was covered under the RCSBP with Option C, immediate coverage.  At that time, she initiated action to apply for her SBP benefits; however, DFAS denied her claim based on the 6-year barring statute.

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 after the FSM's death.

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 after the FSM's death.



      ___________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)                                         AR20090007029



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007029



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1