IN THE CASE OF:	  

		BOARD DATE:	  21 February 2012

		DOCKET NUMBER:  AR20110016575 


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 correction of the record of her husband, a deceased former service member (FSM), to show he made a timely application for retired pay and elected to participate in the Survivor Benefit Plan (SBP).  She also requests an exception to the "barring statute."

2.  She states there was a lack of knowledge of the need to apply for benefits.  

3.  She provides documents identified in a list of enclosures.

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 21 June 1947.

3.  On 22 September 1965, he enlisted in the Army National Guard (ARNG), serving through 21 September 1971.  Following a break in service, he enlisted again in the ARNG, serving from 23 May 1980 to 22 May 1981.  After a second break in service, he enlisted again in the ARNG and served from 6 March 1982 to 5 March 1995.

4.  On 3 May 1995, he was notified he had completed the required years of service to be eligible for retired pay upon application at age 60.  

5.  A DD Form 1883 (Survivor Benefit Plan Election Certificate) shows, on 9 July 1995, he elected spouse-only Reserve Component SBP (RCSBP) coverage based on the full amount of his retired pay and Option C.  He and his spouse signed the form.

6.  On 1 December 1995, he was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired).  He completed 20 years, 8 months, and 26 days of total service for pay.

7.  The applicant provides a Certificate of Death showing the FSM died on 18 March 2000.  The document shows he was 52 years old at the time of his death and shows the applicant as his surviving spouse.

8.  The applicant provides a letter, dated 31 January 2010, from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (AHRC), Fort Knox, KY, informing her request for payment of the Survivor Benefit annuity was denied because she had failed to file a claim within 6 years of her husband's death.

9.  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.

10.  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.

11.  Public Law 95-397 further provides that once a member elects either option B or C in any category of coverage, that election is irrevocable.  Options B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in the RCSBP as it automatically rolls into SBP coverage.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  If RCSBP option B or C is elected, there is a Reservist portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member die prior to age 60.

12.  Title 31, United States 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 record keeping requirements.

13.  Army Regulation 135-180 (Army National Guard and Army Reserve - Qualifying Service for Retired Pay - Nonregular Service) states it is the responsibility of each qualified individual to submit his or her application for retired pay.  The regulation further states to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as a Reserve Component Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The FSM had completed the required years of service to be eligible for retired pay upon application at age 60, and he made a timely election of spouse-only RCSBP coverage and option C based on the full amount of his retired pay.  The applicant concurred with this election.  

2.  There is no basis for correcting the FSM's record to show he made a timely application for retired pay.  He died before reaching age 60, the age he would have been eligible to receive retired pay.  

3.  The purpose of the RCSBP is to allow members of the Reserve Components to provide an annuity based on retired pay in the event of death before reaching age 60.  In this case, because the FSM selected RCSBP option C, the applicant was eligible to receive benefits immediately upon his death.  

4.  Notwithstanding the decision by AHRC to deny the applicant's 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 date of the FSM's death.  The Government is not harmed because all documents establishing her entitlement are readily available.

5.  In view of the foregoing, the FSM's record should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 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 FSM's death on 18 March 2000.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the FSM's record to show he made a timely application for retired pay.



      _______ _   __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)                                         AR20110016575





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ABCMR Record of Proceedings (cont)                                         AR20110016575



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