IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090018505 


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, in effect, entitlement to the Reserve Component Survivor Benefit Plan (RCSBP) benefits retroactive to 1995 based on the death of her husband, a former service member (FSM). 

2.  The applicant states that subsequent to the death of her husband in July 1995, she submitted the paperwork to the U.S. Army Reserve Personnel Center (now known as the U.S. Army Human Resources Command St. Louis or USAHRC-STL) in October 1995 and was told that she would be entitled to an annuity at the time. However, she never received any monies.  As time passed, she received no communication so she inquired again and was told she was not entitled to benefits.  In 2008, she inquired again because she knew she was entitled to payment.  It is not her fault that payment was never started.  She submitted the appropriate documentation but it was not processed properly.

3.  The applicant provides a copy of the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 30 October 1990; a copy of the FSM's death certificate, dated 24 July 1995; a copy of a letter, dated 2 October 1995, from the Chief, Retirement Services, U.S. Army Reserve Personnel Center; a copy of an undated DD Form 2656-7 (Verification for Survivor Annuity); a copy of her Standard Form 1199 (Direct Deposit Sign-up Form), dated 20 March 2009; a copy of her W-4P (Withholding Certificate for Pension or Annuity Payment), dated 25 March 2009; copies of various emails, dated 9 and 10 August 2009; and a copy of a letter, dated 17 April 2009, from USAHRC-STL, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 19 January 1947 and enlisted in the Regular Army on 19 August 1964.  He held military occupational specialty (MOS) 12B (Combat Engineer) and he was honorably released from active duty on 31 July 1967.

2.  On 27 October 1972, he enlisted in the Alabama Army National Guard (ALARNG) and on 1 December 1972, he married his spouse, Inez, the applicant. He served through multiple reenlistments or extensions in the ALARNG and attained the rank/grade of staff sergeant (SSG)/E-6.

3.  On 10 October 1990, by memorandum, the Office of the Adjutant General, State Military Department, ALARNG, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This memorandum notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

4.  On 30 October 1990, the FSM completed a DD Form 1883.  He indicated that he was married and had dependent children, and elected to participate in the RCSBP, spouse and children coverage, based on the full amount, Option C (Immediate Coverage).  His spouse, Inez, the applicant, authenticated this form by placing her signature in the appropriate block. 

5.  On 25 May 1995, the Office of the Adjutant General, ALARNG, published Orders 145-327 reassigning the FSM to the Retired Reserve in the rank and grade of SSG/E-6, effective 22 February 1995.

6.  On 24 July 1995, the FSM died at the age of 48.  His death certificate shows he was married to Inez, the applicant, at the time he died.

7.  On 2 October 1995, by letter, the Chief of Retirement Services, USAHRC-STL notified the applicant that the Director, Defense Finance and Accounting Services (DFAS), Cleveland, OH, would be notified they were authorized to pay an annuity to her as a beneficiary based on the military service of the FSM.

8.  The FSM's records reflect no activity with respect to payment of the annuity from 1995 through 2009.  

9.  On 25 March 2009, she submitted a DD Form 2656-7 with allied documents in support of her request for the SBP annuity.

10.  On 17 April 2009, by letter, the Chief, Transition and Separation Branch, USAHRC-STL notified the applicant that his records showed she was certified for benefits on 2 October 1995 and that the Director, Retired Pay, DFAS-Cleveland had been notified of her claim.

11.  On 10 August 2009, DFAS established an annuity for the applicant with payments effective 6 years from the date of receipt of her recent claim received in March 2009.  

12.  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 member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

13.  Title 31 U. S. Code (USC), 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, USC, 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 she is entitled to payment of an SBP annuity retroactive to 1995 based on the death of her husband, a FSM.  

2.  The evidence of record shows that upon receiving his 20-year letter, the FSM submitted an SBP Election Certificate on 30 October 1990, in which he elected full immediate spouse and children RCSBP coverage.  He was transferred to the Retired Reserve on 22 February 1995 and he died on 24 July 1995.

3.  The evidence of record further shows subsequent to his death, his spouse, the applicant, requested an annuity be started based on his death and she received a letter on 2 October 1995 from USAHRC-STL confirming her entitlement to the annuity.  However, no action was taken by DFAS with respect to initiation of payment.

4.  It is unclear why DFAS took no action on her annuity or why she did not pursue this issue until 2009.  Nevertheless, when she resubmitted her request, DFAS officials started an annuity effective March 2003 due to the barring act which limited her claim for payment to 6 years prior to her March 2009 inquiry.

5.  It is clear that the failure to pay the monthly annuity from October 1995 is the result of a Government error since DFAS either did not receive or failed to process the annuity application from USAHRC-STL.  The applicant should not be penalized for this failure.  Therefore, in the interest of equity, justice, and compassion, she is entitled to payment of the annuity retroactive to the first day following the death of her husband in July 1995.

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 she made a timely request for the SBP annuity and her request was received and processed by the appropriate office in a timely manner; and that DFAS pay her the SBP annuity as a result of this correction, retroactive to the day following the FSM's death on 24 July 1995.




      _________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)                                         AR20090018505



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ABCMR Record of Proceedings (cont)                                         AR20090018505



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