IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120004517 


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, in effect, correction of the FSM's military records to show she applied for the Survivor Benefit Plan (SBP) annuity in a timely manner.

2.  The applicant states:

	a.  She understands her husband didn't file the SBP within the allowed time limit; he signed an election form 3 months late.

	b.  His records with the Army show his highest rank as chief warrant officer two (CW2).  He also served on active duty in the U.S. Marine Corps (USMC) for 6 years and 10 years in the USMC Reserve.  His final rank from the USMC was captain.  Since he was a captain in the USMC, he should be eligible for retired pay at that rank.

	c.  The record showing that no one receives retirement because of lateness in turning in the SBP election form is unjust because the FSM served more than 20 years.  She is his widow and needs the income from his retirement.

3.  The applicant provides:

* FSM's DD Form 1883 (SBP Election Certificate)
* FSM's notification of eligibility for retired pay at age 60
* FSM's Army National Guard (ARNG) Retirement Points History Statement
* document pertaining to the FSM's rank as captain
* FSM's death certificate
* DD Form 2656-7 (Verification for Survivor Annuity)

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 15 August 1952.  He married the applicant on 26 August 1975.  Having prior active service in the USMC and inactive service in the USMC Reserve, he enlisted in the ARNG in February 1992.  On 26 July 1998, he was honorably discharged from the ARNG to accept a warrant officer appointment.  He was appointed as an ARNG warrant officer one on 27 July 1995 and promoted to CW2 on 2 July 1997.

3.  On 13 March 2000, the FSM received his notification of eligibility for retired pay at age 60 (20-year letter).  Records at the Defense Finance and Accounting Service (DFAS) do not show he ever made a Reserve Component (RC) SBP election.

4.  The applicant provided a DD Form 1883, dated 10 October 2000, which shows the FSM elected spouse coverage, full amount, option B (age 60).

5.  The FSM was honorably discharged from the ARNG on 2 May 2003 in the rank of CW2.

6.  On 16 March 2006, the FSM died at the age of 53.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

8.  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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected 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.

DISCUSSION AND CONCLUSIONS:

1.  It appears the FSM attempted to enroll in the RCSBP in October 2000 for spouse coverage.  While that is outside a 90-day window from the date of his  20-year letter, it is accepted that it was inside the 90-day window from the date the FSM received his 20-year letter.  Therefore, the DD Form 1883 provided by the applicant which shows the FSM elected spouse coverage, full amount, option B (age 60), is accepted as sufficient evidence on which to base correcting his records.

2.  The FSM died on 16 March 2006.  He would have turned age 60 in August 2012.  

3.  In view of the foregoing, the Army's records should be corrected to show the applicant applied for the SBP annuity and returned the application to the appropriate office in a timely manner.  SBP premiums are to be taken out of the annuity.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 FSM elected RCSBP for spouse coverage, full amount, option B, within 90 days of receipt of his 20-year letter; and

	b.  showing the applicant applied for the SBP annuity and returned the application to the appropriate office where it was processed in a timely manner.

2.  Based on this correction, the Defense Finance and Accounting Service should pay the applicant the SBP annuity accordingly.



      ____________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)                                         AR20120004517



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ABCMR Record of Proceedings (cont)                                         AR20120004517



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