IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110017261 


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 spouse of a deceased former service member (FSM) requests, in effect, that her husband's records be corrected to show she filed a timely application for receipt of his Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states she was never notified there was a time limit for filing a claim for the RCSBP annuity.

	a.  The FSM told her he would collect an Army pension at age 60 (beginning in January 2008); however, he passed away in 2005 prior attaining age 60.

	b.  When the applicant began looking into the FSM's retirement benefits, she was informed she was not entitled to the RCSBP benefit because she had not filed her claim in a timely manner (i.e., within 6 years of the FSM's death).

3.  The applicant provides:

* their marriage certificate
* the FSM's RCSBP documents
* the FSM's Certificate of Death
* correspondence from Army offices denying her claim


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 in January 1948.  He had prior honorable enlisted service from 18 July 1966 through 5 September 1980.

3.  He enlisted in the U.S. Army Reserve (USAR) on 6 September 1980.

4.  The FSM was issued a memorandum from the U.S. Army Reserve Personnel Center, St, Louis, MO, subject:  Notification of Eligibility for Retired Pay at Age 60, dated 2 October 1989.

5.  A DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) shows the FSM indicated he was married to Patricia A. (the applicant) on 25 October 1981 and he had two dependent children.  He elected spouse and children coverage based on the full amount of retired pay with RCSBP Option C (Immediate coverage).  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the FSM placed a checkmark in the "Yes" block.  The DD Form 1883 also shows the FSM and the applicant placed their signatures on the document on 2 January 1990.

6.  In support of her application, the applicant provides the following pertinent documents.

	a.  New York State Department of Health, Certified Transcript of Marriage, dated 12 August 2003, that shows the applicant and FSM were married on
25 October 1981.

	b.  New York State Department of Health, Certificate of Death, issued
12 February 2005, that shows the FSM died on 10 February 2005.  It also shows


the FSM was married at the time of his death and the applicant's name is listed as the informant on the certificate.

	c.  U.S. Army Human Resources Command (USA HRC), Fort Knox, KY, memorandum, dated 21 April 2011, that shows the Chief, Reserve Component Retired Pay, notified the applicant that the FSM executed a DD Form 1883 on
2 January 1990 and elected Option C (Immediate coverage), which entitles the applicant to his annuity in the event of his death.  The applicant was also provided information regarding the documentation required in order to start the annuity process.

	d.  DD Form 2769 (Application for Annuity Certain Military Surviving Spouses) that shows the applicant made application for the FSM's SBP annuity.  The
DD Form 2769 also shows the applicant and two witnesses each placed their signatures on the document on 13 June 2011.

	e.  DD Form 2656-7 (Verification for Survivor Annuity) that shows the applicant verified information relevant to her claim for the FSM's SBP annuity. The applicant signed the DD Form 2656-7 on 15 June 2011.  (The instructions show that the form is to be returned to the Defense Finance and Accounting Service (DFAS)).

	f.  USA HRC, Fort Knox, memorandum, dated 18 July 2011, that shows the Chief, Retired Pay Branch, informed the applicant that her claim for the RCSBP annuity was not made within 6 years of the death of the FSM; therefore, she is not entitled to any benefits.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Retiring members and spouses were to be informed of the SBP options and effects.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies before age 60, but delay payment of it until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon the service member's death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

9.  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 applicant contends that the records of the FSM should be corrected to show she filed a timely application for the receipt of his RCSBP annuity.

2.  Records show on 2 February 1989, the FSM was notified he had completed 20 years of credible service for retired pay at age 60.

3.  On 2 January 1990, the FSM elected RCSBP with spouse and children (immediate coverage) full base amount.

4.  The FSM died on 10 February 2005.  Thus, the applicant was entitled to the FSM's RCSBP annuity effective 11 February 2005.

5.  The evidence of record shows the applicant did not submit the documentation required in order to start the annuity process until 2011.

6.  Despite the fact that the applicant failed to take timely action to start the RCSBP annuity, the applicant's request merits favorable consideration based on the fact that the FSM had submitted a timely election for RCSBP coverage.

7.  Therefore, the FSM's records should be corrected to show the applicant made a timely request for the RCSBP annuity on 11 February 2005.

8.  At least one of the reasons behind the barring statute was not of major importance in this case.  The applicable records were readily accessible and the applicant's case was not difficult to prove.

9.  In view of the foregoing and as a matter of equity, the FSM's records should be corrected to show the applicant timely applied for the RCSBP, it was timely received and processed by the appropriate office, and to pay her the annuity retroactive to the day after the FSM's death.

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 11 February 2005.

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)                                         AR20110017261



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ABCMR Record of Proceedings (cont)                                         AR20110017261



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