IN THE CASE OF:
BOARD DATE: 17 April 2012
DOCKET NUMBER: AR20110016239
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 the FSM's military records to show she had properly and timely applied for Survivor Benefit Plan (SBP) benefits.
2. The applicant states when the FSM passed away in 1996, she called the Defense Finance and Accounting Service (DFAS) in Cleveland, OH. She contends that she was informed she had to wait until she was either 65 years of age, or disabled. When she became disabled, she applied for the FSM's military retirement benefit; however, she was then told it was too late because of the statute of limitations. She feels cheated out of money that is rightfully hers because she was wrongfully informed.
3. The applicant provides a copy of the FSM's Certificate of Death.
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's National Guard Bureau (NGB) Form 23B (Army National Guard Retirement (ARNG) Points History Statement), prepared on 15 February 1995, indicates that the FSM had completed 20 qualifying years for retired pay.
3. A Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated
15 February 1995, informed the FSM that he had attained this eligibility.
4. On 17 February 1995, a first endorsement to the FSM's 20-Year Letter informed the FSM about the SBP and the requirements for participation.
5. A DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 4 March 1995 indicates that the FSM elected full SBP coverage for his spouse and children, under Option C for immediate coverage. The FSM's stepchild was identified as born in 1978. The form was signed and witnessed on 4 March 1995.
6. His NGB Form 22 (Report of Separation and Record of Service) for the period ending 1 September 1995 reports that the FSM was transferred to the Retired Reserve. He had completed 20 years, 6 months, and 7 days of total service for pay.
7. The FSM's Certificate of Death reports that he died on 7 July 1996. The applicant is identified thereon as his spouse.
8. 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If the member dies before reaching age 60, premiums are deducted from the annuity.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the FSM's military records should be corrected to show she properly and timely applied for SBP benefits because she was misinformed by DFAS about how and when to apply for these benefits.
2. The evidence of record clearly shows the FSM completed over 20 years of qualifying service for retired pay and he properly and timely submitted his SBP election. The FSM elected spouse and children coverage with Option C for immediate coverage.
3. The Certificate of Death provided by the applicant reports the FSM died on
7 July 1996. Accordingly, she was eligible to apply for SBP coverage for herself and her child.
4. There is no reason to doubt the applicant's contention that she timely attempted to apply for SBP benefits and unfortunately was misinformed about when to apply. She should not have to suffer the consequences of such misinformation.
5. In view of the foregoing, the FSM's military records should be corrected to show the applicant had properly and timely applied for the SBP benefits due her and her child.
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:
a. showing the applicant had properly and timely filed for SBP benefits immediately after the FSM's death;
b. the appropriate office timely received and processed the applicant's application; and
c. paying the applicant all SBP annuities due commencing the day after the FSM's date of 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) AR20110016239
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ABCMR Record of Proceedings (cont) AR20110016239
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