IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110002012 


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 the deceased former service member (FSM), requests entitlement to a Reserve Component Survivor Benefit Plan (RCSBP) annuity effective the FSM's death.

2.  The applicant states she was never properly notified by the military that she was entitled to an RCSBP annuity.  She recently requested copies of records showing that the FSM had elected immediate RCSBP coverage.

3.  The applicant provides copies of:

* Memorandum from the Retired Services Officer
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Standard Form 1199A (Direct Deposit Sign-Up Form)
* DD Form 2656-7 (Verification for Survivor Annuity)
* DD Form 4 (Enlistment Contract)
* DD Form 4 (Record of Induction)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Death
* Certificate of Marriage
* DD Form 1883 (Survivor Benefit Plan Election Certificate)


* NGB Form 23B (Army National Guard Retirement Points History Statement)
* DD Form 1300 (Report of Casualty)

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.  Records show that the FSM had served on active duty from 5 August 1968 to 4 August 1970.  On 26 February 1974, the FSM enlisted in the Texas Army National Guard (TXARNG) and was assigned as a military policeman with the 149th Military Police Company, located in San Antonio, Texas.

3.  On 10 July 1981, the FSM married the applicant.

4.  In a memorandum dated 12 August 1992, the FSM was notified of his eligibility for retired pay at age 60.  He had attained the rank of staff sergeant, pay grade E-6.

5.  DD Form 1883 dated 30 September 1992, shows that the FSM had elected SBP coverage for his spouse and children based on his full retired pay with option C, immediate coverage.  The form is signed by the FSM and a witness.

6.  DD Form 1300 dated 15 December 1998, reports that the FSM had died on 19 November 1998.  At the time he was assigned to the 149th Military Police Company, Texas Army National Guard, located in San Antonio, Texas.  He had completed 26 qualifying years for retired pay.

7.  Records show that the applicant had requested an RCSBP annuity on 
5 January 1999, less than 2 months after the FSM's death.

	a.  The applicant stated that she was requesting a monthly annuity for herself and her two children in accordance with the DD Form 1883 that the FSM had submitted.

	b.  The applicant had signed the request and indicated that the following documents were attached:
* Death Certificate
* Marriage License
* Birth Certificates for children
* 20-Year Letter
* DD Form 1883
* DARP Form 3856 (Reserve Component Supplemental SBP Election Certificate)
* NGB Form 23B
* FSM's Promotion Orders 18-1, dated 30 April 1981

8.  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.  If the member dies before reaching age 60, premiums are deducted from the annuity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show she is entitled to an RCSBP annuity effective on 19 November 1998, the FSM's date of death.

2.  When the FSM completed his DD Form 1883 in 1992, he elected to participate in the RCSBP for spouse and children coverage based on his full retired pay.  Less than 2 months after his death, the applicant submitted a request for the RCSBP annuity.  For unknown reasons, her request was never processed and the annuity has not been paid.

3.  In view of the above, the records should be corrected to show that the applicant made a request for an RCSBP annuity in a timely manner and that such request had been approved.  The applicant should now be paid this RCSBP annuity to include all unpaid monies from 20 November 1998.

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 that the applicant made a request for an RCSBP annuity in a timely manner and that such request had been approved; and

	b.  paying the applicant an RCSBP annuity effective 20 November 1998.



      _______ _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)                                         AR20110002012





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ABCMR Record of Proceedings (cont)                                         AR20110002012



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