IN THE CASE OF:	

		BOARD DATE:	 08 April 2010 

		DOCKET NUMBER:  AR20090010872 


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:

Applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests a waiver to the applicable statute of limitations and survivor benefits for the applicant, the widow of a deceased former service member (FSM).

2.  Counsel states the following:

	a.  the applicant initially requested a survivor benefit annuity on 23 February 2006 but was denied by Human Resources Command (HRC), St. Louis, MO because the FSM elected Survivor Benefit Plan (SBP) spouse coverage for his first wife.

	b.  an HRC-St. Louis letter required her to provide a copy of the death certificate for the FSM's first wife in order to further process her claim.

	c.  an HRC-St. Louis letter, dated 15 May 2009, informed her she would have been eligible for the SBP annuity if not for the statute of limitations.

3.  The applicant's counsel provides: 

* 2 HRC letters
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* DD Form 2656-7 (Verification For Survivor Annuity)
* W-4P (Withholding Certificate for Pension or Annuity Payments)
* Standard Form 1199A (Direct Deposit Sign-Up Form)
* National Guard Bureau (NGB) 22 (Report of Separation and Record of Service)
* DD Form 214 (Report of Separation from Active Duty)
* Army National Guard Current Annual Statement
* 3 certificates of death
* 2 marriage licenses

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.  On 25 August 1993, the FSM was issued a State of Ohio, Adjutant General's Department, Columbus, OH, memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 [commonly known as the 20-year letter], which notified him of his eligibility for retired pay at age 60 in accordance with Title 10, U.S. Code, section 1331.

3.  The FSM's military record contains a DD Form 1883, dated 19 September 1993, which shows in section II, Item 8 that he elected SBP coverage for spouse and children and in 9c that he elected Option C (Immediate coverage).  Option C states "I elect to provide an immediate annuity beginning on the day after date of my death whether before or after age 60."  The DD Form 1883 further identifies the FSM's spouse as C----- J. K--- with the social security number (SSN)
xxx-xx-7251.

4.  The applicant provides a certificate of death for C----- J.K--- with the SSN
xxx-xx-7251 which shows she died on 16 January 1996 as a result of cardiopulmonary arrest.

5.  The applicant also provides a marriage license which shows that she married the FSM on 4 July 1998.

6.  A certificate of death provided by the applicant shows the FSM died on 7 January 2000 of massive internal bleeding as result of a car accident.

7.  A letter from HRC-St. Louis, dated 14 March 2006, states that since the FSM made SBP coverage for his first wife, a copy of a divorce decree, final property settlement, or a copy of her death certificate is required for verification.  There is no evidence of record to show the applicant ever submitted the requested documents.

8.  However, a subsequent letter from HRC-St. Louis, dated 15 May 2009, states the applicant's claim is governed by a statute of limitations which required a claim to be filed within 6 years of the date it first accrued.  The statute of limitations went into effect on 7 January 2006, and her claim for annuity was denied.

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, was irrevocable except in certain circumstances.

10.  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 age 60 (and participate in SBP), 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 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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

11.  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 this 6-year limitation for filing claims, 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's contention that she would have been eligible for the SBP annuity were it not for the statute of limitations was carefully considered.
2.  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.

3.  It is clear the FSM intended and elected to provide an annuity for his spouse should he die before age 60.  The applicant was his spouse at the time he died.  As a result, given the available evidence confirming the applicant's eligibility, it would be appropriate to grant the requested relief.

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:

   a.  showing the applicant made a timely request for the SBP annuity immediately after the FSM's death on 7 January 2000,

   b.  showing her request was timely received and processed by DFAS, and

   c.   paying her the SBP annuity payments due.



      __________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)                                         AR20090010872



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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