BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021780 


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, as a widow of a former service member (FSM), a waiver of the 6-year statute of limitations of her application for benefits under the Reserve Component Survivor Benefit Plan (RCSBP). 

2.  The applicant states as a result of extreme grief due to the loss of her husband and dealing with completing the paperwork for his life insurance everything was very demanding.  She never received counseling regarding applying for SBP at the time of his death.  In 2008, she called the Army about his retirement and received some paperwork.  She did not understand the forms and she did not receive a return call after her inquiries.  A service organization representative assisted her with completing and submitting a request for RCSBP which was denied because it had exceeded the 6-year statute of limitations.

3.  The applicant provides a copy of a letter from the U.S. Army Human Resources Command (HRC).

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the U.S. Army Reserve (USAR) on 29 August 1984.  He served continuously in an active status through several reenlistments and extensions.  



2.  The FSM was issued a 20-Year Letter on 21 June 2006.  The letter stated he would be automatically enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retired Pay, unless spouse concurrence is provided to allow for another option.

3.  The FSM's records contain a death certificate and a DD Form 1300 (Report of Casualty), which shows he died on 10 October 2006 due to lung cancer.  The death certificate shows he was married to the applicant at the time.

4.  The Soldier Management System, located on the HRC Integrated Web Service (IWS), Transaction History, states the following:

* 21 June 2006 - 20-Year letter was mailed to the FSM
* 29 September 2006 – Retirement/Management section was notified that the FSM was in the hospital and would be unable to get back to New York to get the 20-Year letter, requested a copy be faxed
* 6 October 2006 – 20-Year letter was faxed to the FSM's unit
* 16 October 2006 – spouse called casualty section to report the FSM's death
* 24 November 2006 – Servicemembers' Group Life Insurance section received a casualty case for determination
* 25 March 2008 – spouse spoke with the SBP section in reference to SBP
* 27 March 2008 – spouse was assisted with an estimation of the SBP annuity
* 5 May 2008 – spouse called about the forms/SBP that she had not received
* 18 October 2012 – spouse called SBP section wanting information on the SBP and how she could apply for benefits
* 24 October 2012 – spouse was briefed on how to complete the form and where to send it
* 24 October 2012 – SBP packet was mailed to spouse
* 9 November 2012 – spouse was denied SBP 

5.  The FSM would have reached age 60 on xx May 2024.

6.  A staff member of the Defense Finance and Accounting Service – Retired Pay section verified that the FSM did not have a DD Form 1883 (SBP Election 
Certificate) or a DD Form 2656 (Data for Payment of Retired Personnel) on file at the DFAS-Retired Pay section.  The only document located was his 20-year letter from the USAR.

7.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component 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

8.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

9.  Title 31, USC, section 3702, also known as the Barring Act, prohibits the payment of a claim against the 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, U.S.Code, 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 completed 20 years of service in June 2006 and he was mailed a 20-Year Letter.  It appears he did not receive the letter, as he was hospitalized, but he was informed he had achieved 20 years of service. 

2.  The FSM did not submit an RCSBP election; however, he was automatically enrolled in Option C.  The FSM died on 10 October 2006, after the 90-day election period closed.  Therefore, his automatic enrollment in Option C was final. Although the FSM had qualified for a Reserve retirement, he died prior to reaching age 60.  

3.  Considering the facts and circumstances of this case, it would now be appropriate as a matter of fairness and equity to correct the records to show the applicant applied for an RCSBP annuity on 11 October 2006 as the beneficiary of the FSM’s RCSBP.

4.  In view of the foregoing, the records should be corrected 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 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 showing the applicant applied for the RCSBP annuity as the spouse/beneficiary on 11 October 2006, the day following her husband's death, and that she be paid the annuity due as a result of this correction.



      _______ _ 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)                                         AR20120021780



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ABCMR Record of Proceedings (cont)                                         AR20120021780



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