IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110005212 


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 that he be paid the Reserve Component Survivor Benefit Plan (RCSBP) annuity designated to be paid to him by his step- grandfather, a retired U.S. Army Reserve (USAR) master sergeant (MSG) who is now deceased. 

2.  The applicant states, in effect, that his step-grandfather, a former service member (FSM), designated him to receive an RCSBP annuity immediately upon his death and he has been attempting since 2005 to receive this benefit and just kept getting the run-around.  He continues by stating that he is now being told he waited too late to apply for the benefit.

3.  The applicant provides:

* a copy of the FSM’s death certificate
* Copies of correspondence from the Human Resources Command (HRC)
* A copy of a letter from the Defense Finance and Accounting Service (DFAS) addressed to his father in 2005

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 5 June 1944.  On 27 September 1997, while in the USAR, he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) in which he made an election for full coverage, option C immediate coverage for a natural person with insurable interest.  The person designated for insurable interest coverage was the applicant, who was 6 years of age at the time (date of birth 14 August 1991). 

3.  On 1 May 1998, the FSM was transferred to the Retired Reserve.  On 19 November 2003, the FSM died at the age of 59 years and 5 months of age. The applicant was 12 years of age at the time of his step-grandfather’s death.

4.  A review of the FSM’s records shows that the FSM created a testamentary trust for the applicant in his last will and testament.  There is also evidence the applicant’s father contacted the Retired and Annuity Pay Section at DFAS in 2005 seeking payment on the applicant’s behalf.

5.  On 21 January 2010, officials at HRC mailed an SBP annuity packet to the applicant’s father and it was returned on 1 March 2010 and was processed by HRC and forwarded to officials at DFAS.

6.  On 13 January 2011, officials at DFAS informed officials at HRC that no valid annuity application was received within the 6-year statute of limitations and therefore could not be paid.

7.  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.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.

8.  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 enrolled in the RCSBP in 1997 for natural person with insurable interest coverage, with the applicant as the beneficiary, and the applicant was only 6 years of age.  The FSM died on 19 November 2003 and the applicant was only about 12 years of age.  The applicant is not a military member and was not aware of the requirement to submit a claim within a specified period.  There is some evidence to indicate the applicant’s father contacted DFAS in 2005 seeking the annuity for the applicant.  It appears that had he received proper assistance from the Army or DFAS, he would have applied for the SBP in a timely manner.  As all relevant information is available, the purpose of the barring statue would not be served in this case.

2.  In view of the foregoing, the Army's records should be corrected to show the applicant applied for the RCSBP annuity on 1 December 2003 and returned the application to the appropriate office in a timely manner.

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 the SBP annuity on 1 December 2003 and returned the application to the appropriate office in a timely manner where it was processed in a timely manner.

2.  DFAS should pay the applicant the SBP annuity effective 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)                                         AR20110005212



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ABCMR Record of Proceedings (cont)                                         AR20110005212



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