BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010915 


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 to receive a Survivor Benefit Plan (SBP) annuity based on the death of her husband, a deceased former service member (FSM).

2.  The applicant states, in effect, the following:

* her husband received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* the FSM elected her as the beneficiary of his SBP
* the State sent the wrong statement of service which showed the FSM had completed only 19 years of service instead of 20 years, 3 months, and 16 days

3.  The applicant provides the following documents in support of her request:

* letter, dated 26 January 2010
* 20 year letter, dated 8 July 1994
* Army National Guard (ARNG) Retirement Points History Statement
* Illinois ARNG (ILARNG) letter, dated 18 December 2009
* memorandum, dated 22 December 2009
* DD Form 1883 (Survivor Benefit Plan Election Certificate) with statement
* DD Form 2656-7 (Verification for Survivor Annuity)
* DD Form 1884 (Application for Annuity Under the Retired Serviceman's Family Protection Plan (RSFPP) and/or SBP)
* ARNG Current Annual Statement
* Standard Form 1199A (Direct Deposit Sign-up Form)
* Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* death certificate
* retirement order
* birth certificate
* marriage certificate
* Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services)
* Davis Mortuary, Inc., billing statement and receipt for payment

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's military records show he was born on 28 August 1946 and the FSM and applicant were married on 26 January 1966.

3.  The FSM's record shows that after having prior active duty service in the Army of the United States and inactive service in the U.S. Army Reserve (USAR), he enlisted in the ILARNG on 11 March 1976.

4.  On 8 July 1994, the ILARNG issued the FSM a 20-year letter.  It did not include a Reserve Component SBP (RCSBP) summary statement.

5.  On 3 May 1994, an ARNG Current Annual Statement was prepared for the FSM.  It shows he completed 19 years, 9 months, and 3 days of creditable service for retired pay.

6.  On 23 September 1994, the FSM was honorably discharged from the ILARNG and transferred to the USAR Control Group (Retired).  The NGB Form 22 shows he completed 18 years, 6 months, and 13 days of creditable military service for the period covered.

7.  On 9 August 2002, the FSM completed a DD Form 1883.  In section II (Marital, Dependency, and Election Status) of this form the FSM elected RCSBP option C (Immediate Coverage) for spouse only at the full base amount.  Under a separate cover, both the applicant and the FSM indicated that neither of them received any counseling regarding making an SBP election upon his retirement from the ILARNG.

8.  On 23 August 2002, the FSM died at the age of 55.

9.  On 16 October 2002, the applicant completed a DD Form 1884.

10.  On 18 December 2009, she completed a DD Form 2656-7.

11.  On 18 December 2009, the ILARNG Transition Assistance Advisor prepared a statement regarding the applicant's request to receive an SBP annuity based on the FSM's death.  In it she provided the following:

	a.  that she was the retirement noncommissioned officer who prepared the FSM's 20-year letter at the time of his retirement;

	b.  that she talked with the FSM over the phone about his DD Form 1883 prior to the 90-day expiration required to make an RCSBP election;

	c.  the FSM made his RCSBP election; however, following his request for a witness signature from his unit, she never received the DD Form 1883 from the unit; and

	d.  it is her belief that the FSM's spouse (widow) should receive the SBP annuity based on the 24 years of service rendered by the FSM.

12.  On 25 January 2010, an ARNG Retirement Points History Statement was prepared for the FSM.  It shows he completed 20 years, 3 months, and 16 days of creditable service for retired pay.

13.  On 26 January 2010, the Chief, Transition and Separations Branch, U.S. Army Human Resources Command, prepared a letter regarding the applicant's eligibility to receive an SBP annuity.  In it he provided the following:

	a.  the applicant's initial request for an RCSBP annuity was denied in November 2002 because the statement of service provided showed the FSM completed only 19 years, 9 months, and 3 days of qualifying service from the ILARNG and no DD Form 1883 was provided;

	b.  the applicant's second request for an SBP annuity, dated 19 December 2009, could not be adjudicated because the 6-year statute of limitations had expired on 23 August 2008 following the FSM's 22 August 2002 date of death;

	c.  following receipt of the letter from the ILARNG Transition Assistance Advisor which indicated the FSM's intent to provide his spouse an SBP annuity, his office contacted the State of ILARNG to obtain a final statement of service for the FSM; and

	d.  the State provided his office with a final statement which shows the FSM had completed 20 years, 3 months, and 16 days of qualifying service and that as a result the FSM's spouse should be granted an SBP annuity from the date of his death.

14.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

15.  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.  If the member dies before reaching age 60, costs are deducted from the annuity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's record should be corrected to show she is entitled to receive an SBP annuity.

2.  The evidence of record confirms that several errors occurred during the FSM's RCSBP election process that were due to no fault of his own as evidenced in the letters from ILARNG Transition Assistance Advisor and the U.S. Army Human Resources Command Transition and Separations Branch Chief.

3.  Based on the FSM's completion of sufficient qualifying service for retirement, the statement of the Transition Assistant Advisor regarding the FSM's decision to elect immediate RCSBP coverage, and his unit's mishandling of his paperwork, his records should be corrected and it would be appropriate to provide the applicant the RCSBP annuity effective the day after the FSM's death.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 FSM elected to participate in the RCSBP for spouse only coverage, full base amount, option C, in July 1994, when he received his 20-year letter; that it was received and accepted by the appropriate office in a timely manner; and by paying the applicant the SBP annuity retroactive to the date 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)                                         AR20100010915



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ABCMR Record of Proceedings (cont)                                         AR20100010915



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