IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110003699 


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, in effect, that she be paid a Survivor Benefit Plan (SBP) annuity based on the Reserve Component SBP (RCSBP) election of her deceased spouse, a former service member (FSM).   

2.  The applicant states she was unaware that she was entitled to an SBP annuity until she visited the Defense Enrollment Eligibility Reporting System (DEERS) office and was informed that she should have received this payment.  She goes on to state that her husband did not inform her of her eligibility for such benefits and neither did the Army when he passed away.  She further states that she submitted all of the required documents to the Human Resources Command and was informed that due to the statute of limitations she could not receive the pay unless a correction was made to the FSM’s records.   

3.  The applicant provides a copy of the:

* DD Form 2656-7 (Verification for Survivor Annuity)
* FSM’s 20-year letter
* FSM’s DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 
17 October 1993
* FSM’s Retirement Points History
* FSM’s death certificate
* applicant’s and FSM’s marriage license



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 was born on 12 December 1950 and he enlisted in the Louisiana Army National Guard (LAARNG) on 28 July 1971.  He completed his training as a food service specialist and remained in the LAARNG through a series of continuous reenlistments.  He served in Southwest Asia from 23 November 1990 through 24 March 1991.  

3.  On 15 August 1993, he was issued his 20-year letter and on 17 October 1993 he submitted a DD Form 1883 in which he elected full spouse and children coverage under option C, for immediate coverage.

4.  He was promoted to the pay grade of E-7 on 20 January 1995 and served in Kuwait and Iraq from 15 April 2003 to 26 March 2004.  He was still serving in the LAARNG when he died on 4 September 2004.  He had over 33 years of creditable service.

5.  In the processing of this case a staff member of the Board contacted officials at the Defense Finance and Accounting Service (DFAS) to ascertain why the applicant was denied an SBP annuity and was informed the applicant was denied because she applied after the 6-year statute of limitations following the death of the FSM.

6.  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 death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).  

7.  Title 31, U. S. Code, section 3702 prohibits the payment of a claim against the Government unless the claim has been received within 6 years after the claim accrues.  

DISCUSSION AND CONCLUSIONS:

1.  The Board accepts the applicant’s contention that she was not counseled regarding the RCSBP.  The FSM was still serving in the LAARNG when he passed away and it was incumbent on officials in the LAARNG to ensure that the applicant was made aware of her entitlements at the time. 

2.  Therefore, it is apparent the applicant did not receive the proper counseling regarding her entitlements and thus resulted in her being denied benefits she was entitled to receive upon the death of the FSM.

3.  One of the reasons behind the Barring Act is to relieve the Government of excessive paperwork and prevent stale, baseless claims which the government cannot substantiate.  Given the FSM’s 33+ years of service, his spouse is certainly deserving of favorable consideration for his service to his country.  Further, documents verifying the applicant’s entitlements are readily available.

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 an RCSBP annuity, on 5 September 2004, the day after her husband’s death and that she be paid the annuity retroactive to that date. 

2.  The Board wants the applicant and all others to know that the sacrifices made by her late husband in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _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)                                         AR20110003699



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ABCMR Record of Proceedings (cont)                                         AR20110003699



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