IN THE CASE OF:	   

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120018205 


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 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 states:

* The FSM retired from the Utah Army National Guard (UTARNG) in 2000; he was suffering from depression at the time
* He was unable to submit his DD Form 1883 on time due to his illness and she was unaware that it needed to be sent within 90 days
* He died in 2002 and the only outreach she received from the military was counseling; there was no instruction regarding his annuity
* She inquired with friends and a retired individual and she was told she had to wait until age 60
* When she reached age 60, she was told she had to wait until age 62

3.  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
* DD Form 1883, dated 9 February 1998
* W-4P (Withholding Certificate for Pension or Annuity Payment), dated
27 May 2012
* Direct Deposit Form, 29 May 2012
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), dated 21 May 2012
* Notification of Eligibility for Retired Pay at Age 60, dated 27 October 1997

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 13 November 1947.  He and the applicant were married on 24 November 1990.

2.  Having had prior service in the Regular Army, the FSM enlisted in the UTARNG on 3 September 1981.  He served through multiple extensions and attained the rank/grade of sergeant (SGT)/E-5.

3.  On 27 October 1997, the UTARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.  This letter further provided him with an SBP Plan Summary.  The summary informed him:

Title 10, U.S. Code, and Army Regulation 135-180 (ARNG and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service) governing administration of the Reserve Component SBP (RCSBP) provides that if an election is not filed during the initial 90-day period following notification, the member may not participate in the SBP until he/she attains age 60 and applies for retired pay.  If you fail to respond within 90 days and you should die before reaching age 60, your survivors will not receive an annuity under the RCSBP.

4.  The applicant provides a DD Form 1883 that was completed by the FSM.  He indicated he was married and he elected "spouse only" RCSBP coverage, Option C (immediate coverage), based on the full amount.  This form:

* Is signed by the FSM in Section IV (Signatures) on 9 February 1998
* Signed by the Retiree (FSM) on the reverse of the form on 10 December 1997
* 
Signed by the FSM's spouse (the applicant) on 10 December 1997
* Although not available through the Defense Finance and Accounting Service (DFAS), it appears to have been maintained by the UTARNG

5.  Orders 251-083, issued by Headquarters, UTARNG, dated 7 September 2000, transferred the FSM to the Retired Reserve, effective 2 September 2000.

6.  On 1 October 2002, the FSM died.  His Certificate of Death listed L-- A--, the applicant, as the informant and spouse.

7.  On 28 July 2012, the applicant applied for an SBP annuity based on the FSM's death.

8.  On 21 August 2012, an HRC official denied her request.  The official stated effective 2 July 1975, the Statute of Limitations (Title 39, U.S. Code) requires that a claim be filed within 6 years of the date it first occurred.  The FSM died on 1 October 2002.  The statute went into effect on 1 October 2008.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.

10.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  The FSM's records do not indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.  However, it appears he made an election and his ARNG unit accepted and filed his election even though it was technically late.

2.  The FSM, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  Nevertheless, given his medical condition as explained by the applicant, and given the fact that he submitted a DD Form 1883 on 9 February 1998 - less than a month after the 90-day cut-off date (the 20-year letter is dated 27 October 1997) - it is reasonable to presume his intent had been to provide an annuity for his spouse.  Further, the fact that his unit accepted the form would have led him to reasonably believe his election was effective.

3.  Therefore, as a matter of equity, the FSM's record should be corrected to show he timely submitted his DD Form 1883 and it was timely processed by the Army.  Additionally, his record should further be corrected show his spouse, the applicant, submitted a timely claim for her RCSBP/SBP annuity.

4.  Likewise, it is reasonable to presume had the applicant known of the Statute of Limitations she would have applied for the annuity immediately after his death. It appears she relied on improper advice.  Therefore, she should not be penalized by the advice she received.

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:

* showing the FSM timely submitted an RCSBP election for spouse only coverage based on the full amount within 90 days of receiving his 20-year letter
* showing DFAS officials timely received and processed his election
* showing the applicant submitted a claim for her RCSBP annuity on 2 October 2002 and her request was accepted and processed by the appropriate office
* paying the applicant an RCSBP annuity beginning on the date 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)                                         AR20120018205



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120018205



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1