BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090019689 


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

2.  The applicant states that the FSM died 7 years before he was eligible to draw retired pay.  She adds that although she reviewed his retirement information at the time of death, she was unaware that he had previously completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) in 1991.  She also states that she filed a claim of Death and Indemnity Compensation (DIC) with the Department of Veterans Affairs (VA) and has been receiving monthly checks since it was determined that his death was related to his military service.  

3.  The applicant provides a copy of the FSM's death certificate, dated               14 February 2002; a copy of the DD Form 1883, dated 17 November 1991; a copy of the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 30 October 1991; a copy of the FSM's National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), dated 29 October 1991; a copy of the FSM's NGB Form 22 (Report of Separation and Record of Service), dated 7 June 1992; and a copy of Orders 126-27, issued by the Adjutant General's Department, Texas Army National Guard (TXARNG), on 26 June 1992, in support of her request.




CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show that he was born on 28 July 1948 and was inducted into the Army of the United States and entered active duty on 21 November 1969.  He was honorably separated on 20 November 1971 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for completion of his Reserve obligation.

2.  The FSM’s records also show he remained in the USAR Control Group (Annual Training) from 21 November 1971 to 21 March 1975.  He married the applicant on 10 August 1974.

3.  The FSM’s records further show he enlisted in the TXARNG on 12 September 1976.  He subsequently executed a series of reenlistments and/or extensions in the TXARNG and held military occupational specialty 91K (Armor Crewmember) and 51H (Construction Engineer).  

4.  On 30 October 1991, the Adjutant General's Department, TXARNG, issued the FSM a 20-Year Letter.  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

5.  On 17 November 1991, the FSM completed a DD Form 1883, electing "spouse only" coverage, full amount, option C, under the RCSBP.  He and his spouse (the applicant) authenticated this form by placing their signatures and dates in the appropriate section.

5.  On 26 June 1992, the Adjutant General's Department, TXARNG, published Orders 126-127 directing the FSM’s transfer to the Retired Reserve in the rank/grade of master sergeant (MSG)/E-8 effective 7 June 1992.  The NGB Form 22 he was issued shows he completed over 20 years of total service for pay. 

6.  On 14 April 2002, the FSM died at the age of 53.  He would have turned 60 on 28 July 2008.

7.  The U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), Integrated Web Services (IWS) is a web-based collection of data, applications, and tools to assist Career Managers and other Human Resource Personnel in supporting Active Army, Army Reserve, and Army National Guard Soldiers, veterans, retirees, family members, and other stakeholders.  The principal IWS application is the Soldier Management System (SMS).  This system shows the following entries for the FSM:

	a.  on 15 October 2009, the applicant submitted to HRC-STL documentation in support of her RCSBP request, including a copy of her marriage license, FSM's death certificate, birth certificate, direct deposit form, 20-year letter, and NGB Form 23B; and 

	b.  on 12 November 2009, the applicant was informed that her request for the annuity was denied by the Defense Finance and Accounting Service (DFAS) based on the 6-year Barring Act.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  

9.  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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

10.  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, 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's contention that she is entitled to receive SBP benefits based on the death of her husband, an FSM, was carefully considered and found to have merit.

2.  The evidence of record shows that upon receiving his 20-year letter, the FSM completed a DD Form 1883, electing "spouse only" coverage, full amount, option C, under the RCSBP.  Regrettably, he died prior to reaching age 60. 

3.  It appears that at the time of his death, the applicant was unaware or had forgotten that he had previously submitted this form and she had concurred with his election.  Had she known at the time, she would have certainly filed for her entitlement to the annuity.  Therefore, in the interest of justice and equity, the FSM's records should be corrected to show the applicant made a timely request for the annuity immediately after the FSM's death, that her request was timely received by DFAS, and that she should be paid the 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 be corrected by showing the applicant made a timely request for the RCSPB annuity immediately after the FSM's death, that her request was timely received by DFAS, and that she should be paid the annuity.




      _______ _  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.


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