IN THE CASE OF:
BOARD DATE: 23 February 2012
DOCKET NUMBER: AR20110013856
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 she be paid the Reserve Component Survivor Benefit Plan (RCSBP) annuity designated to be paid to her by her deceased husband, a retired Virginia Army National Guard (VAARNG) staff sergeant.
2. The applicant states that she reported her husbands death within 30 days, she was issued a new identification card, and told that she had to wait until he reached age 60 before she could receive his retired pay benefits. However, when he would have reached age 60, she was informed that she applied too late. She followed the information that she was given and now she is being told she can no longer receive the benefits he earned.
3. The applicant provides copies of a letter from the Human Resources Command (HRC) at Fort Knox, Kentucky, her marriage license, the FSMs death certificate, the FSMs 20-year letter, and her identification card.
CONSIDERATION OF EVIDENCE:
1. The FSM served on active duty in the Regular Army from 22 February 1977 to 17 November 1987.
2. He enlisted in the VAARNG on 30 November 1987 and served through continuous reenlistments. He was issued his 20-year letter on 1 October 1997 and on 7 November 1997 he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) in which he elected full spouse coverage under option C (Immediate coverage). The applicant was listed as his spouse.
3. He was honorably discharged on 29 November 1997 and was transferred to the Retired Reserve.
4. On 11 January 2005, the FSM died at the age of 53 in Norfolk, Virginia.
5. On 30 June 2011, officials at HRC dispatched a letter to the applicant informing her that the statute of limitations went into effect in her case on
11 January 2011; therefore, her claim was denied because no valid annuity application was received within the 6-year statute of limitations and she could not be paid. Officials also informed her that she could apply to this Board.
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 members 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.
7. 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 immediate full spouse coverage, with the applicant as the beneficiary. The FSM died on 11 January 2005 and the applicant claims she was informed that she would have to wait until the FSM reached age 60 to receive benefits. The applicant is not a military member and it is reasonable to believe that she was not aware of the requirement to submit a claim within a specified period. It is also reasonable to believe that had she received proper assistance from the Army or the Defense Finance and Accounting Service she would have applied for the annuity in a timely manner. As all relevant information appears to be available, the purpose of the barring statue is not relevant.
2. In view of the foregoing, the Army's records should be corrected to show the applicant applied for the RCSBP annuity on 1 February 2005 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:
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 RCSBP annuity on 1 February 2005 and returned the application to the appropriate office in a timely manner where it was processed in a timely manner.
___________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) AR20110013856
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ABCMR Record of Proceedings (cont) AR20110013856
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