IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100021449 


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 reinstatement of her benefits under the Reserve Component Survivor Benefit Plan (RCSBP) as a widow of a former service member (FSM) and TRICARE eligibility retroactive to the FSM's 60th birthday.

2.  She states she was informed by the U.S. Army Human Resources Command (HRC) that the statute of limitations of 6 years had elapsed from the FSM's date of death and she was no longer eligible for this monthly payment.  She and the FSM were separated in 2001.  They were residing in Kansas at the time of their separation.  He left the state and moved to New Hampshire and remained there until the following year and he then moved to Texas.  He died shortly thereafter.  She was notified of his death, but did not receive a copy of the death certificate from the Texas Department of Vital Statistics as they believed he was divorced.

3.  She also states that neither her late husband nor herself ever applied in any state for dissolution of marriage.  She was unaware that his RCSBP was still valid upon his death due to his being discharged as a result of his incarceration in the Kansas prison system.  When she applied for social security benefits she discovered his death certificate listed him as divorced which explains why she could never get a copy of the document.  She had to provide proof to the State of Texas that they were still married at the time of his death and she was then provided a copy.  The death certificate was amended to reflect they were married.

4.  She further states she applied to HRC for a survivor annuity and TRICARE benefits, but she was denied.  She is requesting she be granted eligibility for the annuity based on the errors by the State of Texas in publishing the death certificate as well as the lack of support from the State of Kansas upon her husband's discharge.  It took several months for her to obtain all the required documents to apply for SBP as her late husband's personnel records were scattered across both Kansas and New Hampshire.

5.  She provides:

* FSM's 1960 and 1963 DD Forms 214 (Armed Forces of the United Report of Transfer or Discharge)
* marriage certificate
* FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* FSM's Army National Guard (ARNG) Retirement Credit Records
* FSM's Statement of Service
* FSM's DD Form 1883 (SBP Election Certificate)
* FSM's National Guard Bureau Form 23 (Report of Separation and Record of Service)
* FSM's death certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
* her Financial Management Service (FMS) Form 2232 (FASTSTART Direct Deposit)
* her Internal Revenue Service Form W-4P (Withholding Certificate of Pension or Annuity Payments)
* a letter from HRC

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 29 July 1973.

2.  The FSM's military records show he enlisted in the Kansas ARNG on 7 August 1980 with prior Regular Army enlisted service.

3.  On 9 September 1987, the FSM was issued a 20-year letter that advised him of his completion of the required years of service and his eligibility for retired pay upon application at age 60.

4.  The applicant provided a copy of the FSM's DD Form 1883, dated 24 September 1987, wherein the FSM listed his status as "married" and elected to provide immediate full SBP annuity based on the full amount of retired pay for "spouse only."  He listed his retirement date as 8 May 2003 (his 60th birthday).  In section III (Family Information) he listed the name of the applicant, a son, and a daughter.  The applicant concurred with his election on 24 September 1987.

5.  The FSM was discharged from the Kansas ARNG in pay grade E-6 on 11 January 1991 due to confinement in a State penal institution.

6.  The FSM died on 29 September 2002.  Item 12 of his death certificate issued by the State of Texas shows he was divorced and the same daughter listed on his DD Form 1883 was named as the informant.

7.  On 3 August 2010, the State of Texas issued the applicant an amended death certificate showing the FSM was married to her at time of his death.

8.  The applicant provided a DD Form 2656-7, dated 19 August 2010, wherein she listed the FSM as the deceased member and her name as the claimant for the SBP.  She also provided an FMS Form 2231 and W-4P as associated documents for those payments.

9.  In a letter in reference to her eligibility for an SBP annuity based on the military service of her late husband, dated 26 August 2010, HRC advised the applicant the statute of limitations (Title 39, U.S. Code) required that a claim be filed within 6 years of the date the incident first occurred effective 2 July 1975.  The FSM died on 29 September 2002 and the statute went into effect on 29 September 2008 in her filing a claim.  Therefore, her request for payment must be denied.  She was also advised she could apply to the Army Board for Correction of Military Records for a review of her case.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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.

11.  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 FSM and the applicant were married on 28 July 1973.  On 9 September 1987, the FSM was notified of his eligibility for retired pay at age 60.  On 24 September 1987, he elected to provide immediate full SBP annuity to his spouse.  The FSM was discharged from the Kansas ARNG on 11 January 1991 as a result of his confinement in a state prison.

2.  The evidence of record also shows the FSM died on 29 September 2002.  His death certificate showed he was divorced.  On 3 August 2010, the State of Texas issued the applicant an amended death certificate showing the FSM was married to the applicant at the time of his death.  There is no evidence the FSM attempted to change his elected RCSBP coverage after the discharge or prior to his death and he did not have the power to do so without the applicant's concurrence.  The only intent clearly proven is that he elected and intended to provide RCSBP spouse coverage to the applicant.

3.  The evidence of record further shows the applicant's claim for an RCSBP annuity was denied by HRC on 26 August 2010 because her claim was not filed within 6 years of the FSM's date of death.

4.  Considering the facts and circumstances of this case, it would now be appropriate as a matter of fairness and equity to correct the records to show the applicant applied for an RCSBP annuity on 29 September 2002 as the spouse beneficiary of the FSM.

5.  TRICARE is available to active duty service members and retirees of the seven Uniformed Services, their family members, survivors, and others who are registered in the Defense Enrollment Eligibility Reporting System (DEERS).  Sponsors are automatically registered in DEERS.  Sponsors must enroll their family members.  When there is a change in information, each family member's eligibility record must be updated separately.  TRICARE is also available to members of the ARNG and Reserve and their families and benefits will vary depending on the sponsor's military status.  Registration in DEERS is the key.  The applicant should visit the DEERS website now or call 1-800-538-9552 to confirm or establish her eligibility for TRICARE.

6.  In view of the foregoing, the records should be corrected as recommended below.


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 applicant applied for a RCSBP annuity as the spouse beneficiary on 30 September 2002, the day following her spouse's death, and that she be paid the annuity due her as a result of this correction.



      ____________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)                                         AR20100021449



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ABCMR Record of Proceedings (cont)                                         AR20100021449



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