BOARD DATE: 1 November 2011
DOCKET NUMBER: AR20110009398
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 spouse of a deceased former service member (FSM), requests, in effect, that she be determined to be entitled to a Survivor Benefit Plan (SBP) annuity as a "forgotten widow" based on the service of the FSM.
2. The applicant states she filed for an SBP annuity back in 1983 and battled back and forth for an identification card. Her husband passed away prior to leaving for the 2-week summer camp at Red River Arsenal. He had a heart attack and passed away on 26 May 1978, just a week after he loaded trucks for the military convoy. He had intended to retire on his 60th birthday, but passed away before that time. She was never told she had 6 years after he turned 60 to file for the retirement benefit.
3. The applicant provides a certificate of marriage, certificate of death, and a letter.
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 applicants 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 applicants 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 29 May 1929. He and the applicant were married on 19 September 1949. Having had prior service, he enlisted in the U.S. Army Reserve (USAR) on 17 February 1958.
3. On 15 November 1977, by memorandum, the USAR issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This memorandum notified the FSM that he had completed at least 20 years of qualifying service and would be eligible for retired pay upon application at age 60.
4. The FSM died on 26 May 1978 prior to reaching age 60. He was still a member of the USAR at the time of his death.
5. In the processing of this case, an advisory opinion, dated 20 August 2011, was received from the Chief, Retired Pay Branch, U. S. Army Human Resources Command. The advisory official recommended disapproval of the applicant's request for SBP benefits and stated that the FSM's record did not indicate that he made an SBP election. However, it should be noted that RCSBP was not in effect in 1977, the year the FSM received his 20-year letter. The applicant was provided a copy of the advisory opinion and did not respond.
6. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
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.
8. Public Law 105-85, enacted 18 November 1997, provided for an SBP annuity to be paid to the qualified surviving spouse of each member of the uniformed services who:
a. died before 21 March 1974 and was entitled to retired pay on the date of death; or
b. was a member of a reserve component during the period beginning 21 September 1972 and ending on 1 October 1978, and at the time of death would have been entitled to retired pay but for the fact he or she was under 60 years of age. The surviving spouse must not have ever remarried or otherwise be entitled to SBP or Dependency and Indemnity Compensation. Annuities under this section would be paid for months beginning after the month in which the law was enacted. The authority to pay annuities under this section was to expire on 30 September 2001.
9. Public Law 106-65, enacted 5 October 1999, amended Public Law 105-85. It extended coverage under that law to surviving spouses of all "gray-area" retirees (i.e., those eligible to receive retired pay but not yet age 60) and repealed the expiration authority. The amendment as pertains to payment of annuities to surviving spouses of "gray-area" retirees was effective 1 October 1999.
DISCUSSION AND CONCLUSIONS:
1. The applicant met the eligibility criteria to apply for an SBP annuity as a "forgotten widow" when the original law was passed in November 1997. However, due to the barring statute it is too late for a normal application to entitle her to retroactive payments beyond 6 years.
2. It would be equitable, however, to correct the records to show she applied for the SBP annuity as a "forgotten widow" in November 1997. That would enable her to receive retroactive payments to 1 December 1997, the earliest date provided for by law.
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
showing she applied for the "forgotten widow" annuity in November 1997 and
that she be paid the annuity, provided she otherwise meets the eligibility criteria, retroactive to 1 December 1997.
_______ _ 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) AR20110009398
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ABCMR Record of Proceedings (cont) AR20110009398
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