IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110005371 


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). 

2.  The applicant states that she had to wait until his death certificate was amended from homicide to accidental death.  She was not aware that there was a statute of limitation (SOL) on her husband’s retirement even when it was nothing she could do until the court ruled his death as an accident.  

3.  The applicant also states that she was charged with his death and had to wait for 6 1/2 years before going to trial.  She was subsequently proven innocent of his death.  The State of Mississippi (MS) was then court ordered to change his death certificate to reflect accidental death.  The certificate was not changed until July 2010.  This SOL seems to be based on normal circumstance of a person’s death.  In her case there were unusual circumstances that prevented her from applying even though her attorney was not informed of the SOL.  

4.  She further states that she would have been entitled to her late husband’s retirement.  As his survivor, she feels that due to circumstances beyond her control that she is entitled to the benefits her husband served his country for.  Her life has been shattered forever due to his death and the wrongful charge against her.



5.  The applicant provides:

* Certificate of Marriage
* Last Will and Testament of the FSM, dated 8 April 2000
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Notification of Eligibility for Retired Pay at Age 60 memorandum, dated 1 May 2003
* DD Form 2656-5 (Reserve Components Survivor Benefit Plan (RCSBP) Election Certificate), dated 12 June 2003
* Initial 2003 and amended 2010 death certificates
* DD Form 2656-7 (Verification for Survivor Annuity)
* 2011 Director Deposit Sign-Up Form and W-4P (Withholding Certificate for Pension or Annuity Payments)
* FSM’s Army National Guard (ARNG) Retirement Points History Statement, prepared on 17 February 2011

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he was born on 14 June 1956.  He enlisted in the MSARNG on 14 February 1985.  

2.  The applicant and the FSM were married on 20 September 1997.

3.  The FSM’s Last Will and Testament, dated 8 April 2000, shows he bequeathed all of his property, both real and personal, to the applicant.

4.  The FSM was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 24 January 2003.  He was honorably released from active duty, in pay grade E-6, on 27 February 2003, with a hardship discharge, and he was transferred to a Reserve unit.

5.  The FSM was honorably discharged from the MSARNG on 31 March 2003 with a hardship discharge.  He was credited with completing 20 years and 1 month of total service for pay.  

6.  On 1 May 2003, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 memorandum.

7.  The applicant provided a copy of the FSM's DD Form 2656-5, dated 12 June 2003, 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." 

8.  The FSM died on 23 July 2003,  Item 12 of his death certificate issued by the State of MS shows he was married to the applicant at the time of his death.  Item 29a (Accident, Suicide, Homicide, Pending Investigation, or Undetermined (specify) of the death certificate listed the entry, “Homicide.”

9.  On 21 July 2010, the State of MS amended the FSM’s death certificate by listing in Item 29a the entry, “Accident.”

10.  The applicant also provided a DD Form 2656-7, dated 14 February 2011, wherein she listed the FSM as the deceased member and her name as the claimant for the SBP.  She further provided a direct deposit form and W-4P as associated documents for those payments.

11.  The Army Human Resources Command (HRC), Soldier Management System, Transaction Detail, shows on 22 February 2011, the applicant’s request for a RCSBP annuity was denied because she should have applied in 2009.

12.  On 9 September 2011, a staff member of the Defense Finance and Accounting Services, Retired Pay, Cleveland, OH, verified the FSM was not in their system and the applicant had not applied to them for an RCSBP annuity.  

13.  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.

14.  Title 31, U.S. Code, section 3702, also known as the barring act, 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 was born on 14 June 1956.  He and the applicant were married on 20 September 1997.  On 31 March 2003, the FSM was discharged from the MSARNG with a hardship discharge.  On 1 May 2003, the FSM was notified of his eligibility for retired pay at age 60.  On 12 June 2003, he elected to provide immediate full SBP annuity to his spouse.  The FSM died on 23 July 2003.

2.  The applicant contends that she was charged with killing her husband and could not apply for an RCSBP annuity until she had been cleared of those charges and a new death certificate issued showing his death was an accident.  On 21 July 2010, the State of MS amended the FSM’s death certificate to show his death was an accident.  The evidence shows the applicant’s claim for an RCSBP annuity was denied by HRC on 22 February 2011 because her claim was not filed within 6 years of his of 23 July 2009.

3.  The evidence of record also shows the applicant was married to the FSM 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.

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 24 July 2003 as the spouse beneficiary of the FSM.

5.  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 24 July 2003, the day following her husband'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)                                         AR20110005371





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ABCMR Record of Proceedings (cont)                                         AR20110005371



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