IN THE CASE OF:
BOARD DATE: 9 September 2010
DOCKET NUMBER: AR20100006865
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, 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:
* In January 2009 she applied for the SBP annuity
* She and the FSM were married on 16 August 1959 and were still married when he died on 13 March 2002
* She was told by an official from the Defense Finance and Accounting Service her application was denied because it had been more than six years since the FSM's date of death
* Government forms, especially military forms, intimidate her
* Prior to her husband's death she had never needed to fill out a military form
* She phoned the Department of Defense on 19 June 2002 about her husband's death and she received a letter with a "Claim for Unpaid Compensation" for her to apply for any unpaid pay that may be due
* According to her records this completed form and a copy of the FSM's death certificate were mailed on 20 June 2002
3. The applicant provides:
* DD Form 1883 (SBP Election Certificate), dated 23 February 1991
* NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service)
* Death Certificate
* Marriage Certificate
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 applicants 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 applicants 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 16 July 1935. He enlisted in the Army National Guard on 26 August 1958. He and the applicant married on 16 August 1959. On
25 August 1964, he was honorably discharged from the Army National Guard. On 12 December 1977, he enlisted in the Army National Guard.
3. The FSM's Notification of Eligibility for Retired Pay at Age 60 was issued on 13 February 1991. The FSM's DD Form 1883, dated 23 February 1991, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse and children coverage, full base amount, Option C (immediate coverage).
4. On 5 March 1991, the FSM was honorably discharged from the Army National Guard.
5. On 13 March 2002, the FSM died.
6. 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.
7. 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.
8. 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 SBP annuity in a timely manner. However, the evidence of record also shows the FSM enrolled in the RCSBP in 1991 for spouse and children coverage. He died on 13 March 2002. 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 2002 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 SBP annuity on 1 April 2002 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 SBP annuity effective 14 March 2002, the day after 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) AR20100006865
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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