IN THE CASE OF:
BOARD DATE: 30 May 2013
DOCKET NUMBER: AR20120016619
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 the record of her deceased husband, a former service member (FSM), be corrected to show she is the eligible beneficiary for a Reserve Component Survivor Benefit Plan (RCSBP) annuity based on the FSM's death.
2. The applicant states she was given misleading information from the Alabama Army National Guard (ALARNG) retired activities branch and therefore the statute of limitations should be lifted.
3. The applicant provides the documents identified in item 9 (In support of this application, I submit as evidence the following attached documents) of her application in support of her request.
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 record shows that after serving in the Regular Army and U.S. Army Reserve (USAR), the applicant entered the ALARNG on 19 April 1975. He continuously served through reenlistments until being discharged from the ALARNG and transferred to the Retired Reserve, in the grade of staff sergeant/E-6, on 21 July 1997.
3. The record contains a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), issued by the State Military Department, Office of The Adjutant General, Montgomery, Alabama on 23 November 1992. The record also contains a DD Form 1883 (SBP Election Certificate), dated 28 December 1992, which the FSM completed in conjunction with receipt of his Twenty Year Letter. In this certificate, the FSM indicated he was not married and he elected full children only coverage under Option C (immediate coverage).
4. The applicant provides a marriage license record that indicates she and the FSM were married on 28 February 1992 at Montgomery, Alabama. She also provides a DD Form 1883, dated 17 January 1996, in which the FSM indicated he was married to the applicant on 10 September 1993, and that he was electing full spouse and children coverage under Option C.
5. 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 RCSBP 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
6. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not
married and has no dependent child upon becoming eligible to participate in
the SBP but who later marries or acquires a dependent child may elect to
participate in the SBP. Such an election must be written, signed by the
person making the election, and received by the Secretary concerned within
one year after the date on which that person marries or acquires that
dependent child.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to correct the FSMs record to show she is eligible for a SBP annuity based on his death has been carefully considered. However, the law in effect at the time required an RCSBP election be made within 90 days of receipt of the 20 Year Letter, and that a member who married subsequent to being eligible to participate in the RCSBP had to submit a written request for spouse coverage within one year of the marriage.
2. In this case, upon receipt of his 20 Year Letter, the FSM completed a
DD Form 1883 on 28 December 1992, in which he indicated he was not married and elected children only coverage. The applicant provides a marriage license record indicating she and the FSM were married on 28 February 1992, well before the FSM became eligible to participate in the RCSBP. She also provides a DD Form 1883, dated 17 January 1996, four years after their marriage, in which the FSM indicated they were married on 28 February 1993, and elected full spouse and children coverage under Option C.
3. Given the inconsistencies in the forms completed by the FSM and applicant, equity relief would not be appropriate in this case.
4. In view of the foregoing, there is an insufficient evidentiary basis to support granting the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X_ _ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
___________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) AR20120016619
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20120016619
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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