BOARD DATE: 9 October 2012
DOCKET NUMBER: AR20120004549
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 her husband's record to show her entitlement to Survivor Benefit Plan (SBP) benefits.
2. The applicant states her SBP claim was denied because her deceased husband did not complete and return a Reserve Component (RC) SBP (RCSBP) election form within 90 days of receiving his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). However, it was impossible for her late husband to comply with the election requirement since he died prior to receiving his 20-year letter.
3. The applicant provides:
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* Letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 16 February 2012
* Memorandum from the U.S. Army Reserve Personnel Center (ARPERCEN), subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 28 October 1994
* DD Form 1300 (Report of Casualty), dated 8 August 1994
* State of Ohio Certificate of Death
* State of Ohio Marriage Certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
CONSIDERATION OF EVIDENCE:
1. On 17 August 1950, the FSM was born.
2. On 30 August 1967, he enlisted in the Regular Army for a period of 3 years.
3. On 6 December 1969, he married Charlotte (the applicant).
4. On 12 March 1977, after service in the Regular Army, he enlisted in the U.S. Army Reserve (USAR). He served through multiple reenlistments in the USAR, in a variety of assignments, and attained the rank/grade of staff sergeant (SSG)/E-6.
5. On 11 March 1994, he completed his 20th qualifying year for retirement.
6. On 24 June 1994, the FSM died.
7. On 28 October 1994, ARPERCEN issued the FSM a 20-Year Letter that informed him he had completed the required years of service and would be eligible for retired pay upon application at age 60.
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.
9. Title 10, U.S. Code, section 1448, provides for the application of the SBP/RCSBP. Subsection (f) provides for the coverage of survivors of persons who die when, or before, eligible to elect RCSBP annuity coverage. It states the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to provide a reserve-component annuity and dies:
a. before being notified under section 12731(d) of this title that he/she has completed the years of service required for eligibility for reserve-component retired pay; or
b. during the 90-day period beginning on the date he receives notification under section 12731(d) of this title that he/she has completed the years of service required for eligibility for reserve-component retired pay if he/she had not made an election under subsection (a)(2)(B) to participate in the Plan.
10. Title 31, U.S. Code, section 3702, also known as the Barring Act, prohibits the payment of a claim against the U.S. 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, 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 evidence of record shows the FSM died after attaining eligibility for a non-regular retirement, but before his 20-Year Letter was issued; therefore, he was unable to make an RCSBP election. In accordance with Title 10, U.S. Code, section 1448, the Secretary shall pay an annuity to the surviving spouse of a person who is eligible to provide a reserve-component annuity and dies before being notified under section 12731(d) of this title that he/she has completed the years of service required for eligibility for reserve-component retired pay.
2. In view of the foregoing, it would be appropriate at this time to grant the applicant's requested relief and to correct the FSM's record 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 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:
a. showing the applicant timely applied for the RCSBP annuity in accordance with the provisions of Title 10, U.S. Code, section 1448, and
b. by paying her 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) AR20110012544
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