BOARD DATE: 7 February 2013
DOCKET NUMBER: AR20120013255
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 correction of her deceased husband's record to show she made a timely application for an annuity under the Reserve Component Survivor Benefit Plan (RCSBP). She requests the RCSBP annuity be paid to her retroactive to 2002 when the FSM died.
2. The applicant states she was not provided any oral or written limitations on when to apply for her husband's retirement pay. Had she known, she would have started immediately due to financial hardship.
3. The applicant provides:
* Defense Finance and Accounting Service (DFAS) letter, dated 13 June 2012
* U.S. Army Human Resources Command, Reserve Components Retirements Office letter, dated 16 May 2012
* Department of the Treasury, Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 21 May 2012
* Standard Form 1199A (Direct Deposit Sign-Up Form), dated 23 May 2012
* FSM's Certificate of Death
* Marriage Certificate
* Army National Guard (ARNG) Retirement Points History Statement, dated 29 May 2012
* DD Form 2656-7 (Verification for Survivor Annuity), dated 21 May 2012
* DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 20 May 1992
* Service Member's Statement Concerning Compensation from the Veterans Administration, dated 10 May 1992
* State of California, Office of the Adjutant General, memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60, dated 2 April 1992
CONSIDERATION OF EVIDENCE:
1. The FSM served in the U.S. Marine Corps Reserve, U. S. Army Reserve, and the ARNG.
2. On 20 May 1992, the FSM completed a DD Form 1883 in which he made an election to participate in the RCSBP and elected immediate full coverage for his spouse and children
3. On 11 June 2002, the FSM died at 50 years of age.
4. On 21 May 2012, in response to the 16 May 2012 memorandum from the HRC Reserve Components Retirement Office, the applicant submitted a DD Form 2656-7 requesting verification of her entitlement to the RCSBP. On 13 June 2012, DFAS denied her request, stating it was not in compliance with the filing provisions stipulated in Title 31, U.S. Code, which specifically require the receipt of SBP claims by DFAS within 6 years of the date of death. The memorandum stated she could apply to the Army Board for Correction of Military Records for a review of her case.
5. The applicant provides copies of the:
a. marriage certificate from the State of California, showing she and the FSM were married on 11 December 1971;
b. FSM's certificate of death from the State of California, County of San Diego, showing he was married at the time of his death;
c. FSM's ARNG Retirement Points History Statement showing he had
26 years, 2 months, and 21 days of creditable Service for retired pay.
6. 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.
7. 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 applicant's request for correction of her deceased husband's record to enable her to collect an RCSBP annuity has been carefully considered and is determined to have merit. The evidence clearly indicates the FSM elected to provide an immediate RCSBP annuity to his spouse and eligible children in the event of his death.
2. The evidence in this case confirms the FSM's RCSBP election. The FSM's marriage to the applicant is not in question.
3. It is reasonable to conclude the applicant was neither aware that her RCSBP entitlement began on her husband's death rather than on his 60th birthday, nor aware of the legislation requiring her to make application for the RCSBP annuity within 6 years of the FSM's death. Had she known, she would have made application immediately. To deny her the SBP annuity now would be an injustice.
4. Therefore, it would be appropriate to show the applicant submitted a DD Form 2656-7 on 12 June 2002, thereby entitling her to the RCSBP annuity.
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 by corrected by:
a. showing the applicant completed and returned a DD Form 2656-7 and related documents to the proper office on 12 June 2002 and that they were received and processed by the proper office in a timely manner and
b. paying the applicant an annuity retroactive to 12 June 2002, the day after the FSM's death.
____________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) AR20090016057
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120013255
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100021535
The applicant provides: * a memorandum to the FSM from the Military Department of Arkansas, Office of The Adjutant General, subject: Notification of Eligibility for Retired Pay at Age 60, dated 21 March 1988 * the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) * a self-authored letter to AR-PERSCOM, dated 27 September 2002, with the following attachments: * the FSM's State of Arkansas Certificate of Death which shows the informant's name as "B---y M--------n" [the...
ARMY | BCMR | CY2013 | 20130007305
Despite this, there is no documentation in his record that shows he elected to participate in the RCSBP after receiving his 15-year letter. Public Law 95-397, the RCSBP, enacted 30 September 1978, provides a means for those who have qualified for Reserve retirement, but who are not yet age 60 [upon which they would be eligible to begin drawing retired pay, upon request, and to participate in the SBP], to provide an annuity to their survivors should they die before reaching age 60. The...
ARMY | BCMR | CY2014 | 20140000840
The applicant, the widow of a deceased former service member (FSM), requests, in effect, correction of the FSM's record to show she filed a claim for a survivor benefit annuity on the day following the FSM's death and payment of unpaid benefits from that date. She only got her identification card in 2003 when she was advised of her benefits by the Army National Guard (ARNG) at which time the FSM's military records still showed him as alive and married to his former spouse. The applicant...
ARMY | BCMR | CY2010 | 20100016600
IN THE CASE OF: BOARD DATE: 25 January 2011 DOCKET NUMBER: AR20100016600 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. She provides copies of the following documents in support of her request: * marriage license * death certificate * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 30 June 1992 * transmittal letter (TL) for 20-year letter, dated 2 July 1992 * Personnel Qualification...
ARMY | BCMR | CY2012 | 20120004993
The applicant, the widow of a deceased former service member (FSM), requests correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse and children based on his full retired pay vice a reduced amount. b. SBP Spouse Concurrence Statement, dated 8 September 1999, wherein it stated the FSM elected SBP coverage for spouse and children with a base amount of $462.00, which was less than full retired pay. As a result, the Board recommends that all Department...
ARMY | BCMR | CY2012 | 20120010361
The DA Form 2656-6, Section III (Conditions that Trigger Eligibility to Change Coverage), Number 8 (I Am Requesting a Change in Coverage Based On:), shows the FSM marked the "Marriage" block which stated, "A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by elective coverage before the first anniversary of that marriage. He and the applicant were married on 7 August 2009. The evidence of record shows her...
ARMY | BCMR | CY2014 | 20140007184
The applicant, the widow of a deceased former service member (FSM), requests her barred claim to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity be granted dating back to her spouse's death. The applicant provides: * License and Certificate for Marriage * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Orders 8-2 * Notice of Eligibility for Retired Pay at Age 60 (20-Year Letter) * DD Form 1883 * National Guard Bureau (NGB) Form 22 (Report...
ARMY | BCMR | CY2013 | 20130011221
The applicant provides copies of their marriage certificate; the FSM's death certificate, service records, an SBP election, and request for retired pay; and the denial. The DD Form 1883 also shows the FSM and a witness, apparently a member of the FSM's unit, placed their signatures on the document on 29 June 1993. c. Two DD Forms 108 (Application for Retired Pay Benefits), both dated 15 October 2011, and two DD Forms 2656 (Data for Payment of Retired Personnel), both unsigned and undated,...
ARMY | BCMR | CY2012 | 20120018205
The applicant, the widow of a deceased former service member (FSM), requests correction of his records to show: * He timely submitted a DD Form 1883 (Survivor Benefit Plan Election Certificate) * She is entitled to be paid the SBP annuity based on his death in 2002 2. The applicant provides: * Denial letter from the U.S. Army Human Resources Command (HRC), dated 21 August 2012 * DD Form 2656-7 (Verification of Survivor Annuity), dated 28 July 2012 * Marriage license * Certificate of Death *...
ARMY | BCMR | CY2014 | 20140015047
IN THE CASE OF: BOARD DATE: 30 April 2015 DOCKET NUMBER: AR20140015047 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant, the spouse of a deceased former service member (FSM), requests correction of her deceased husband's record to show she made a timely application for an annuity under the Survivor Benefit Plan (SBP). In a 16 July 2014 letter, the Chief, Retired Pay Branch, HRC, denied the applicant's claim for payment of the SBP annuity citing the statute of limitations in...