IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20120000633 


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 reinstatement of her benefits under the Reserve Component Survivor Benefit Plan (RCSBP) as the widow of a former service member (FSM). 

2.  The applicant states:

	a.  The Defense Finance and Accounting Service (DFAS) denied her request for SBP because she didn't apply within 6 years from the date of the FSM's death.  She was not aware of this requirement at the time of his death as she was suffering from severe emotional distress.  

	b.  It is her understanding that the Board has the authority to approve reinstatement of her SBP.  Her late husband paid into the SBP with the intention that she received his SBP annuity in the event of his death.  If the Board can correct this situation they will be correcting a severe injustice.

3.  The applicant provides:

* marriage certificate
* FSM's death certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
* letter from DFAS



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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's military records show he was born 10 July 1942.  He enlisted in the Pennsylvania Army National Guard (PAARNG) on 9 November 1965.  

3.  The applicant and the FSM were married on 5 October 1985.

4.  On 15 April 1986, the FSM was issued a Notification of Eligibility of Retired Pay at Age 60.

5.  On 28 May 1986, the FSM completed and signed a DD Form 1883 (SBP Election Certificate).  In Section II (Marital Dependency & Election Status) he stated he was married, had dependent children, and wanted an annuity for spouse and children under the RCSBP based on the full amount of retired pay.  He elected Option C (Immediate coverage).  In Section III (Family Information) he named the applicant as his spouse and one son born on 27 May 1986.  This form was witnessed on the same day.

6.  The instruction sheet attached to his DD Form 1883 stated, "Option C - I elected to provide an immediate annuity beginning on the day after date of my death whether before or after age 60."

7.  He reached age 60 and he was placed on the Retired List on 10 July 2002.

8.  On 26 November 2003, the FSM completed and signed a DD Form 2656 (Data for Payment of Retired Personnel), that shows he elected full SBP coverage for "spouse only."  The applicant is named as his spouse.

9.  The FSM died on 20 December 2003.

10.  In a letter, dated 14 December 2011, a staff member of DFAS, Retired and Annuity Pay section, advised the applicant of the following:

	a.  Their records indicated that a completed DD Form 2656-7 was not on file prior to the 6 years from the date of death of the retiree.  In accordance with Title 31, U.S. Code (USC), section 3702(b), commonly referred to as the Barring Statute, which limited claims against the U.S. Government to 6 years from the date of the event causing the claim, they were unable to honor her request.

   b.  The letter also provided her the address and phone number for DFAS, U.S. Military Retired Pay.

11.  On 28 June 2012, a staff member of DFAS verified the FSM requested spouse coverage on his DD Form 2656 on 29 December 2003.

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

13.  Title 31, USC, section 3702, also known as the barring act, 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, USC, 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.  On 15 April 1986, the FSM was notified of his eligibility for retired pay at age 60.  On 28 May 1986, he elected to provide immediate full RCSBP annuity to his spouse and children.  He was placed on the retired list on 10 July 2002, his 60th birthday.  The FSM died on 20 December 2003.

2.  The applicant contentions were carefully considered.  The evidence shows her claim for an RCSBP annuity was denied by DFAS in December 2011 because her claim was not filed within 6 years of his of death on 20 December 2003 (20 December 2009).
3.  The evidence of record also shows the applicant was married to the FSM at the time of his death.  DFAS verified the FSM elected "spouse only" SBP coverage on 26 November 2003.  It appears, he made no attempt to change his elected RCSBP spouse coverage prior to his death and he did not have the power to do so without the applicant's concurrence.  The only intent clearly proven is that he elected and intended to provide RCSBP spouse coverage to the applicant.

4.  Considering the facts and circumstances of this case, it would now be appropriate as a matter of fairness and equity to correct the records to show the applicant applied for an RCSBP annuity on 21 December 2003 as the spouse beneficiary of the FSM.

5.  In view of the foregoing, the records should be corrected as recommended below.

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 showing the applicant applied for the RCSBP annuity as the spouse beneficiary on 21 December 2003, the day following her husband's death, and that she be paid the annuity due her as a result of this correction.



      __________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)                                         AR20120000633





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ABCMR Record of Proceedings (cont)                                         AR20120000633



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