IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110013039 


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 a deceased former service member (FSM), requests correction of her husband's record to show she filed a claim for benefits under the Reserve Component Survivor Benefit Plan (RCSBP) in a timely manner.

2.  She states she was not counseled or told to file in a timely manner.  She was denied [RCSBP benefits] because of the statute of limitations.

3.  She provides:

* a self-authored statement
* the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a DD Form 1883 (Survivor Benefit Plan Election Certificate)
* a memorandum to the FSM from the Office of The Adjutant General, California National Guard, Sacramento, CA, subject:  Notification of Eligibility for Retired Pay at Age 60, dated 25 October 1996
* an NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement), prepared on 2 February 2011
* an ARPC Form 249-E (Chronological Statement of Retirement Points), dated 24 February 2011
* a letter to her from the Chief, Retired Pay Branch, U.S. Army Human Resource Command (AHRC), Fort Knox, KY, dated 15 February 2011


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 30 October 1947.

3.  Following a period of service in the U.S. Marine Corps (USMC) and USMC Reserve, on 3 February 1971, the FSM enlisted in the Regular Army (RA).  He was honorably discharged from the RA on 2 July 1975.  After a break in service, he enlisted in the ARNG on 6 October 1982.  He was honorably separated from the ARNG on 4 July 2001 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  At the time, he had completed 25 years, 10 months, and 4 days of qualifying service for retired pay.

4.  The applicant provides a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60, dated 25 October 1996, showing the FSM was informed he had completed the required years of service to be eligible for retired pay upon application at age 60.

5.  The applicant provides a DD Form 1883 that shows on 10 November 1996, the FSM elected spouse-only RCSBP coverage based on a reduced amount of his retired pay.  The form shows he chose option C (immediate coverage).  On the same date, the applicant signed the form indicating she agreed with his election.

6.  The Total Army Personnel Database – Reserve shows the FSM died on 11 October 2003, before reaching age 60.

7.  The applicant provides a letter, dated 15 February 2011, from the Chief, Retired Pay Branch, AHRC, Fort Knox, informing her that her request for payment of the Survivor Benefit Plan annuity was denied because she failed to file a claim within 6 years of her husband's death.


8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

9.  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 to include persons of insurable interest should the Reserve member die before reaching age 60.  Three options are available:

	a.  Option A allows Reserve members to decline enrollment upon notification of retirement eligibility and allows Reserve members to elect coverage at age 60.

	b.  Option B allows Reserve members to elect to provide an annuity beginning on the 60th anniversary of their birth should they die before age 60 or on the day after the date of death should they die after their 60th birthday.

	c.  Option C allows Reserve members to elect to provide an annuity immediately upon their death, whether before or after age 60.

10.  Title 31, U.S. Code, section 3702 is the 6-year barring statute for payment of claims by the Government.  One of the principle purposes of the statute is to relieve the Government of over-burdensome recordkeeping requirements.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM made a timely election of spouse-only RCSBP coverage and option C based on a reduced amount of his retired pay.  The applicant concurred with this election.

2.  The FSM died before reaching age 60.  Because RCSBP option C had been selected, the applicant was eligible to receive benefits immediately upon his death.

3.  The applicant admits she did not apply for RCSBP benefits in a timely manner, but she also makes the credible statement that she was not counseled or told to file in a timely manner.  Further, the Government is not harmed because all documents establishing her entitlement are readily available.


4.  Notwithstanding the decision by ARHC to deny her request for payment based on the 6-year barring statute, as a matter of equity, it would be appropriate to correct the FSM's record to show the applicant submitted a timely application to be paid RCSBP and to pay her any RSCBP annuity payments she is due in accordance with the election made by the FSM retroactive to the day after the FSM's death.

5.  In view of the foregoing, the FSM's record 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:

	a.  showing the applicant made a timely application for RCSBP benefits after the FSM's death;

	b.  showing the applicant's claim for the Survivor Benefit Plan annuity was timely received and processed by the appropriate office; and

	c.  paying the applicant any annuity payments she is due in accordance with the FSM's RCSBP election retroactive to the day after the FSM's death on 11 October 2003.


      __________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)                                         AR20110013039



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ABCMR Record of Proceedings (cont)                                         AR20110013039



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