IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100020750 


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 APPLICANTS REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the former spouse of a deceased former service member (FSM), requests correction of the FSM's record to show he responded to a
"20-Year Letter" by electing the Reserve Component Survivor Benefit Plan (RCSBP) with child only (immediate) coverage.

2.  The applicant states the FSM was eligible for his "20-Year Letter" on
22 January 2001 and, under Title 10, U.S. Code, section 1223, he had 90 days to make his RCSBP election.

   a.  The FSM was hospitalized on or about 11 March 2001 due to an exacerbation of his multiple sclerosis causing pseudo bulbar palsy.  On 18 March 2001, he had a stroke-like episode that effectively rendered him incompetent to make any decisions that would affect his son, J—n Z.C. R---s.  At that time, the FSM gave his younger brother, J---s R---s, legal power of attorney.

   b.  During the 90-day period that the FSM was eligible to make his RCSBP election, he was not competent to manage his fiscal affairs.  As a result, the FSM's RCSBP election should have automatically defaulted to immediate coverage for his son.

   c.  The applicant states the Department of Veterans Affairs (VA) informed her that the family was not entitled to any benefits because the FSM was not age 65 at the time of his death.  As a result, the family has been struggling for the past 8 years.

3.  The applicant provides:

* her son's Certificate of Live Birth
* her divorce decree
* four pages of the FSM's medical records and his Certificate of Death
* a letter from her son's school
* a letter from her son's doctor
* a memorandum, subject:  Non Issuance of Notification of Eligibility for Retired Pay at Age 60
* a DD Form 2656-7 (Verification for Survivor Annuity)
* a Standard Form (SF) 1199A (Direct Deposit Sign - Up Form)
* a Form W-4P (Withholding Certificate for Pension or Annuity Payments)

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 his date of birth was 22 October 1958.

3.  The FSM enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 23 January 1980.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the FSM entered active duty in the Regular Army (RA) on 27 February 1980, he was honorably released from active duty on 25 February 1984, and he transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  He had completed 3 years, 11 months, and 29 days of net active service this period and 1 month and 4 days of total prior inactive service.

5.  The FSM enlisted in the USAR for a period of 8 years on 16 April 1985.


6.  The FSM enlisted in the RA on 15 May 1985.  He continued to serve on active duty and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 September 1990.

7.  U.S. Army Reserve Component Personnel Center, St. Louis, MO, letter, dated 2 December 1986, Subject:  Correction of Military Records, shows a determination was made that the FSM had 3 years, 11 months, and 29 days of prior active service and 1 year, 3 months, and 23 days of prior inactive service.
The FSM's Pay Entry Basic Date (PEBD) was established as 23 January 1980.

8.  A DD Form 214 shows the FSM entered active duty this period on 16 April [sic] 1985, he was honorably discharged from active duty on 30 June 1995, and he was transferred to a USAR Troop Program Unit.

   a.  Item 12 (Record of Service), block c (Net Active Service This Period), shows he completed 10 years, 2 months, and 15 days of net active service.

   b.  Item 18 (Remarks) shows he received a Special Separation Bonus of $46,784.85.

9.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the FSM enlisted in the Army National Guard of the United States (ARNGUS) and Colorado Army National Guard (COARNG) on 1 July 1995, he was honorably discharged on 30 June 2001, and he was transferred to the USAR Control Group (Retired Reserve).  He had completed:

* 6 years net service this period
* 1 year, 2 months, and 25 days of prior Reserve Component service
* 14 years, 2 months, and 14 days of prior active Federal service
* 21 years, 5 months, and 9 days of total service for pay
* 20 years, 6 months, and 11 days of total service for retired pay

10.  The Defense Eligibility Enrollment Reporting System (DEERS) database shows the FSM was married to:

* N----e from 19 November 1980 to 5 May 1984
* D---a from 26 February 1985 to 1 October 1992
* K----e [the applicant] from 25 April 1993 to 21 February 2001


11.  In support of her application, the applicant provides a:

	a.  State of Washington, Certificate of Live Birth, that shows J--n Z-------h
C—e R---s was born on 2 February 1995 and the FSM and the applicant are his parents.

	b.  District Court, Mesa County, Colorado, Decree of Dissolution of Marriage, that shows the FSM and the applicant divorced on 21 February 2001.  The document refers to a separation agreement (as Exhibit A that is not attached).  There is no reference to the FSM's RCSBP annuity in the divorce decree.  The document shows the Court ordered, in pertinent part, that "[t]he custody of the minor child (J--n C--e R---s) is granted to the Petitioner [Applicant]"; however, the entry is lined-thru and it was initialed by the District Court Magistrate.

   c.  VA Medical Center, Grand Junction, CO, medical record that shows the FSM was admitted to the hospital on 14 March 2001 with a diagnosis of multiple sclerosis with exacerbation causing pseudo bulbar palsy.  His neurological status abruptly deteriorated on 18 March 2001, he was unable to care for himself, and he was assessed as incompetent for VA fiscal affairs.  The FSM was discharged from the hospital on 30 March 2001.

	d.  State of Colorado, Certificate of Death, that shows the FSM died on
13 February 2003.  The cause of his death was metastatic adeno carcinoma, unknown primary.  It also shows the FSM was divorced at the time of his death.

   e.  Grand Mesa Middle School, Grand Junction, CO, letter, dated 23 April 2010, issued by A-a R. D—e, Attendance Secretary/Registrar, that shows the FSM's son was enrolled in that school on 5 January 2010.

   f.  Dinosaur Junction Pediatrics, letter, dated 23 March 2010, issued by
A-----o E---, Doctor of Osteopathy, that shows the FSM's son was a patient of hers as of January 2010 and he had undiagnosed gastrointestinal issues that would cause him to miss an undetermined amount of school time.

   g.  COARNG, Joint Force Headquarters, Centennial, CO, memorandum, Subject:  Non Issuance of Notification of Eligibility for Retired Pay at Age 60, dated 27 April 2010.  It shows that Sergeant A----a L. M------r, Retirement Points Accounting Management Noncommissioned Officer (RPAM NCO), notified the U.S. Army Human Resources Command that the COARNG did not issue a
20-year notice of eligibility to the FSM upon him attaining 20 years of creditable service.  She indicates the FSM attained 20 years of creditable service on
22 January 2001 and he is automatically covered under the RCSBP with spouse and child coverage.
   h.  DD Form 2656-7, completed by the applicant on 28 April 2010, based on an insurable interest in the FSM's RCSBP.  It shows she indicated the FSM was deceased, she divorced the FSM on 21 February 2001, and that J--n Z. C. R---s was the FSM's son and under the age of 23.

   i.  SF 1199A and W-4P, both dated 28 April 2010, and submitted in conjunction with the DD Form 2656-7.

12.  In connection with the processing of this case, the Military Pay Operations - Cleveland, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify the status of the FSMs participation in the RCSBP and, based on the FSM's death, details of any inquiries/requests for payment of RCSBP benefits.  A DFAS official confirmed that DFAS did not have any additional documents pertaining to the FSM's RCSBP that were not included in the applicant's request to the ABCMR.

13.  In the processing of this case, on 15 March 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA.

   a.  The advisory official states the FSM reached 20 years of creditable service for retirement on 22 January 2001.  On 9 February 2011, the COARNG confirmed it had failed to issue the FSM a "20-Year Letter."  The advisory official adds that the FSM did not submit an application for RCSBP due to not being issued a "20 Year Letter."

	b.  The advisory official provides a copy of the FSM's "20 Year Letter" created by the COARNG (undated, but it indicates it was prepared on 15 May 2001), that notified the FSM of his eligibility for retired pay upon reaching age 60.  The letter also forwarded the following enclosures:

		(1)  The FSM's NGB Form 23B (Army National Guard Retirement Points History Statement), prepared on 9 February 2011, that shows the FSM had completed 20 years, 6 months, and 11 days of creditable service as of 30 June 2001.

		(2)  Two COARNG memoranda, indicating they were prepared on 15 May 2001, that provided the FSM and his [then former] spouse information on the RCSBP, along with two Statements for them to each indicate the RCSBP Option elected.  The two RCSBP Statements do not show an elected option or any signatures.

14.  On 16 March 2011, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

15.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies 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 the service member's death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

16.  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 applicant contends that the records of the FSM should be corrected to show he was issued a "20-Year Letter" and that he elected to participate in the RCSBP with child only (immediate) coverage.

2.  Records show the FSM completed 20 years of creditable service on 
22 January 2001.

3.  It appears the FSM's "20-Year Letter" was issued.  It is posted in his Official Military Personnel File, along with related documents, and the applicant states the FSM received it.

4.  There is no evidence that the FSM elected not to participate in the RCSBP before the end of the 90-day period beginning on the date on which the notification letter was prepared (i.e., 15 May 2001).  Therefore, by operation of law, his coverage defaulted to full immediate child only coverage.

5.  The FSM died on 13 February 2003 at the age of 44.  The Certificate of Death shows the FSM was divorced at the time of his death.

6.  There is no evidence (i.e., divorce decree, separation agreement, deemed election, etc.) that the FSM was required to provide an SBP annuity to the applicant (i.e., his former spouse), or any other former spouse.

7.  The evidence of record shows the FSM had an 8-year old son at the time of his death.

8.  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 applicant's case (on behalf of the FSM's child) was not difficult to prove.

9.  In view of the foregoing, as a matter of justice, the FSM's records should be corrected at this time to show he had full immediate child only coverage and that applicant applied for the RCSBP annuity on behalf of their child in a timely manner.

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:

	a.  showing the FSM applied for the RCSBP annuity and it was received and processed by the proper office in a timely manner, and


	b.  paying the legal custodian of the FSM's son the annuity retroactive to 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)                                         AR20100020750



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ABCMR Record of Proceedings (cont)                                         AR20100020750



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