IN THE CASE OF:
BOARD DATE: 9 August 2012
DOCKET NUMBER: AR20110016900
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 the FSM's records to show she made a timely application for the Reserve Components Survivor Benefit Plan (RCSBP) benefits.
2. The applicant states she did not know she had to apply for the SBP. When she learned she needed to apply she did so but she was denied because of the statute of limitations.
3. The applicant provides:
* a self-authored letter, dated 12 August 2011
* their 1972 Marriage License
* the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-Year letter), dated 16 June 1990
* the FSM's DD Form 1883 (SBP Election Certificate), dated 16 September 1990
* the FSM's DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 25 October 1990
* Orders 123-04, issued by Headquarters, 79th U.S. Army Reserve Command, dated 29 October 1990 (retirement orders)
* the FSM's Certification of Death, dated 23 February 2000
* the FSM's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 29 July 2011
* her DD Form 2656-7 (Certification for Survivor Annuity), dated 14 July 2011
* a Standard Form (SF) 1199A (Direct Deposit Sign-Up Form), dated
15 July 2011
* a Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 14 July 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, a career Reservist, completed his 20 qualifying years for retirement and he was issued a 20-Year letter, dated 16 June 1990.
3. The 20-Year letter informed him that he had 90 days in which to sign-up for RCSBP benefits if he wanted SBP protection for his survivors in the event he died before age 60. On 16 September 1990, the FSM requested full RCSBP for his spouse only under Option C (immediate coverage).
4. On 22 February 2000, the FSM died of cancer at the age of 51.
5. In August 2011, the U.S. Army Human Resources Command (HRC), Fort Knox, KY informed the applicant that the RCSBP benefits were denied because of the statute of limitations.
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
member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, an election had to be made within 90 days of receiving the 20-year letter or coverage defaulted to option A.
7. Title 31, U.S. Code, section 3702 provides a 6-year statute of limitations on claims against the Government.
8. The applicant related in a telephone conversation with a staff member of the Board that the undertaker had a staff member who advised her concerning programs and benefits and how to go about obtaining them. When she asked about the FSM's Army reserve retirement benefits, she was told she was not eligible because he had not reached age 60.
DISCUSSION AND CONCLUSIONS:
1. The FSM qualified for Reserve retirement and requested RCSBP. He died at the age of 51.
2. Because the FSM died before reaching age 60 and had elected Option C, the applicant was eligible for RCSBP benefits, but she was misinformed as to her eligibility. She filed an application for RCSBP benefits as soon as she learned she was eligible.
3. In view of the foregoing, it would be appropriate to rectify this injustice by correcting the FSM's records as recommended below.
BOARD VOTE:
____X___ ___X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 in a timely manner and that she be paid the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 23 February 2000.
2. The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her eligibility for Army benefits. A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp.
_________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) AR20110016900
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ABCMR Record of Proceedings (cont) AR20110016900
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