IN THE CASE OF:
BOARD DATE: 16 March 2010
DOCKET NUMBER: AR20090016057
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 spouse of a deceased former service member (FSM), requests that the FSM's military records be corrected to enable her to collect the Survivor Benefit Plan (SBP) annuity retroactive to 2001 when the FSM died.
2. The applicant states she was led to believe that she could not apply for the SBP annuity until the date her spouse would have reached age 60.
3. The applicant provides copies of their marriage certificate, the FSM's death certificate, and documents associated with the FSM's RCSBP election.
CONSIDERATION OF EVIDENCE:
1. Records available to the Board indicate the FSM, a member of the North Carolina Army National Guard (NCARNG), was notified in February 1994 that he had completed the required years of service to be eligible for retired pay upon application at age 60 (20 year letter). On 1 March 1994 the FSM was honorably discharged from the Army National Guard and transferred to the U.S. Army Reserve Control Group (Retired Reserve).
2. On 13 April 1994 the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) indicating that he was married and had two dependent children (ages 17 and 11). He indicated he wanted full coverage for his spouse and children under Option C (immediate coverage).
3. On 14 September 2001 the FSM died as a result of a motor vehicle accident. He was 52 years old at the time of his death. At the time of the FSMs death his children were then 24 and 18 years of age.
4. Public Law 95-397, the Reserve Component SBP (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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
5. 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 clearly indicates that the FSM elected to provide an immediate RCSBP annuity to his spouse and eligible children in the event of his death prior to reaching age 60 at which time he would have been eligible to receive retired pay based on his years of qualifying military service.
2. It is also reasonable to conclude that the applicant may have mistakenly believed that her RCSBP annuity was directly tied to the date her spouse would have been eligible to draw retired pay. However, because she did not apply for benefits at the time of her spouses death in 2001 she is now precluded from obtaining such benefits beyond the 6 year limit imposed under the barring statue.
3. 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 FSMs spouses case was not difficult to prove.
4. In this case, it is reasonable to presume that had the applicant been aware she was entitled to benefits at the time her spouse died she would have immediately applied for such benefits. To deny her the RCSBP annuity now would be an injustice.
5. Therefore, it would be appropriate to show the applicant submitted a DD Form 1884 (Application for Annuity under the Retired Servicemens Family Protection Plan and/or Survivor Benefit Plan) on 15 September 2001, thereby entitling her to the RCSBP annuity.
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 by corrected by:
a. showing that the applicant completed and returned a DD Form 1884 and related documents to the proper office on 15 September 2001 and that they were received and processed by the proper office in a timely manner; and
b. paying the applicant and any eligible children an annuity (less money owed for RCSBP premiums) retroactive to 14 September 2001, the date of the FSMs 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) AR20090016057
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ABCMR Record of Proceedings (cont) AR20090016057
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