IN THE CASE OF:
BOARD DATE: 25 February 2010
DOCKET NUMBER: AR20090013466
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, the widow of a deceased former service member (FSM), requests, in effect, that the FSM's military records be corrected to show she applied for the Survivor Benefit Plan (SBP) annuity in a timely manner.
2. The applicant states that she did not know there was a time restriction and that if her late husband told her she did not remember. She contends that she suffered grand mal seizures from 1977 to 1989 and still does not know everything that happened. She indicates that she has more health issues and really needs the money to help pay the bills.
3. The applicant provides a DD Form 1883 (SBP Election Certificate), the FSM's death certificate, and the FSM's Honorable Discharge Certificate 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 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 was born on 31 July 1948. He enlisted in the Army National Guard on 13 November 1969. He and the applicant married on 14 October 1970.
3. The FSM's Notification of Eligibility for Retired Pay at Age 60 was issued in December 1989. The FSM's DD Form 1883, dated 1 March 1990, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse and children coverage, full base amount, Option C (immediate coverage).
4. On 12 November 1990, the FSM was honorably discharged from the Army National Guard.
5. On 22 March 1994, the FSM died.
6. There is no evidence the applicant applied to the Defense Finance and Accounting Service for an RCSBP annuity.
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 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. 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. Once a member elects either options B or C in any category of coverage, that election is irrevocable.
9. 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 evidence of record shows the applicant failed to apply for the RCSBP annuity in a timely manner. However, the evidence of record also shows the FSM enrolled in the RCSBP in 1990 for spouse and children coverage. He died on 22 March 1994. The applicant is not a military member and was not aware of the requirement to submit a claim within a specified period. She should not be penalized for not knowing the applicable laws. As all relevant information is available, the purpose of the barring statue would not be served in this case.
2. In view of the foregoing, the Army's records should be corrected to show the applicant applied for the SBP annuity on 1 April 1994 and returned the application to the appropriate office in a timely manner.
BOARD VOTE:
____x____ ____x____ ___x_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 RCSBP annuity on 1 April 1994 and returned the application to the appropriate office in a timely manner where it was processed in a timely manner.
2. Defense Finance and Accounting Service should pay the applicant the RCSBP annuity effective 22 March 1994, the date of 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) AR20090013466
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ABCMR Record of Proceedings (cont) AR20090013466
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