IN THE CASE OF:
BOARD DATE: 3 May 2012
DOCKET NUMBER: AR20110021696
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 his records to show she timely requested entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits.
2. The applicant states she did not know she was entitled to RCSBP benefits until after the time limit for benefits expired. She spoke to an SBP analyst at Fort Knox, KY, and he has been working with her on getting the paperwork she needed to send.
3. The applicant provides:
* The FSM's National Guard Bureau (NGB) Form 22 (Report or Separation and Record of Service)
* ARPC Form 249-2-E (Chronological Statement of Retirement Points)
* A DD Form 1883 (SBP Election Certificate)
* The FSM's Certificate of Death
* A letter from the Defense Finance and Accounting Service (DFAS)
* A DD Form 2656-7 (Verification for Survivor Annuity)
* A Financial Management Service (FMS) Form 2231 (Direct Deposit Sign-up Form)
* A voided check
* A Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Two memoranda
* Three letters
* Three certificates
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 was born on 16 November 1950. He enlisted in the Virginia Army National Guard (VAARNG) on 20 February 1970.
3. He and the applicant were married on 23 November 1985. They had two children born on 19 March 1988 and 4 April 1991.
4. On an unknown date, VAARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This memorandum notified the FSM that he had completed at least 20 years of qualifying service and he would be eligible for retired pay upon application at age 60.
5. His record contains a DD Form 1883, dated 3 June 1990, wherein it shows the FSM made an RCSBP election for "spouse only" full coverage under Option C (immediate coverage). This form also shows he was married to the applicant at the time with one dependent child.
6. On 30 June 1990, he was transferred to the Retired Reserve.
7. On 13 June 2004, the FSM died at the age of 53. He was married to the applicant at the time of his death.
8. The applicant provides a letter, dated 29 April 2011, to her from the Retired and Annuity Pay Branch, DFAS, wherein it stated her request for an SBP annuity was denied as her application was received after the 6-year statute of limitations had expired.
9. 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 (and eligible to participate in SBP), to provide an annuity for their survivors should they die before reaching age 60. Three options are available. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
* Option (A) - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option (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
* Option (C) - elect that a beneficiary receive an annuity immediately upon their death if before age 60
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows, upon receiving his 20-year letter, the FSM elected enrollment in the RCSBP for spouse coverage under Option C, immediate coverage. Regretfully, he died in June 2004, prior to reaching age 60.
2. It appears the applicant presumed she could not apply for the annuity until the date her deceased husband would have reached 60. She was unaware of the 6-year statute of limitations.
3. Nevertheless, she was fully eligible for the RCSBP annuity based on the death of the FSM on 13 June 2004, with payment beginning immediately. It is reasonable to presume that had she known of her husband's election and timely applied, an annuity would have been started for her. Therefore, the record should be corrected to show she applied for the RCSBP annuity 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 FSM be corrected by showing the applicant applied for the RCSBP annuity in a timely manner and that she be paid the RCSBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 14 June 2004, the date after her late husband died.
_______ _ __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) AR20110021696
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ABCMR Record of Proceedings (cont) AR20110021696
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