IN THE CASE OF:	  

		BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130006106 


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, in effect:

   a.  that the records of her deceased spouse, a former service member (FSM), be corrected to show she is entitled to a Survivor Benefit Plan (SBP) annuity and
   
   b.  that if the Board grants her relief on the above that her records be corrected to show she applied for an SBP annuity in a timely manner.  

2.  The applicant states, in effect, the FSM was late in completing the DD Form 1883 (SBP Election Certificate) because he did not receive timely notification due to mailed correspondence.  This resulted in his Reserve Component (RC) SBP election not being accepted by the U.S. Army Human Resources Command (HRC).  His next available enrollment would have been at age 60; however, he did not live to be 60 years old and now there are no RCSBP/SBP or retirement benefits for her.

3.  She states, in effect, she was late in filing for SBP benefits due to the FSM and her teenage son dying within a short period of time and she was too traumatized to worry about finding out how to file for the SBP.

4.  The applicant provides:

* Marriage License
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* DD Form 1883 (SBP Election Certificate)
* Son's Certificate of Death
* FSM's Certificate of Death
* DD Form 2656-7 (Verification for Survivor Annuity) with associated documents
* Standard Form (SF) 1199A (Direct Deposit Sign-Up Form)
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* HRC letter, dated 8 March 2013, notification of non-eligibility for RCSBP benefits

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 26 March 1949.  His records show he was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 19 December 1971.

3.  He married the applicant on 10 July 1972.

4.  On 21 July 1993, the FSM was issued his 20-year letter.  Paragraph 4 of this letter pertains to the RCSBP and the DD Form 1883 and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60.  This form also states that if the FSM did not elect coverage and should die before age 60, his survivors would not be entitled to benefits.

5.  The applicant provides a copy of a DD Form 1883, showing the FSM made an RCSBP election of option C (immediate coverage) for spouse and children based on the full amount of his retired pay.  His spouse signed the document on 27 February 1994.  He authenticated the election with his signature on 28 February 1994.  

6.  On 4 July 1999, the applicant's son died at the age of 15.
7.  On 23 February 2000, the FSM was assigned to the Retired Reserve in the rank of lieutenant colonel.

8.  On 10 August 2002, the FSM died at the age of 53.

9.  The applicant provides a DD Form 2656-7, SF 1199A, and Form W-4P completed by her on 14 February 2013.  The DD Form 2656-7 shows the FSM was deceased and she was married to him at the time of his death on 10 August 2002.

10.  HRC's Integrated Web Services (IWS) contains a January 2013 record of communications concerning an SBP annuity.  It states the applicant had called asking about the RCSBP and if her spouse had submitted the DD Form 1883.  The answer given was that the FSM's file was reviewed and the DD Form 1883 was on file.

11.  An HRC, Chief, Retired Pay Branch letter addressed to the applicant, dated 8 March 2013, stated that, by law, the FSM had 90 calendar days from the date he received his 20-year letter to submit a DD Form 1883.  If an election was not made within the required 90 calendar days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60.  According to HRC records, the FSM never made an election or applied for retired pay.  Therefore, the applicant was not entitled to any benefits.  The letter further stated that since the FSM died on 10 August 2002, the statute of limitations went into effect on 10 August 2008, in the filing of her claim.  Therefore, her request for payment must be denied.

12.  The applicant provided a DD Form 1883 that is date stamped as being received on 7 March 1994.

13.  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.

14.  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 elect SBP 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 member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 calendar days of receiving the 20-year letter or else wait until he or she applied for retired pay at age 60 and elect to participate in the standard SBP.

15.  Title 31, U.S. Code, section 3702, also known as the barring statute, 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 applicant's claim of entitlement to an SBP annuity based on the death of her husband, a FSM, was carefully considered.

2.  The evidence of record in this case confirms that the FSM's 20-year letter was prepared on 21 July 1993.  However, it is unknown when he actually received the 20-year letter and RCSBP packet.  This correspondence would have notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  It would also have notified the FSM that he was entitled to participate in the RCSBP and that upon receipt of notification of eligibility for retired pay at age 60, he had 90 days in which to elect to participate in the survivor benefit plan or remain uncovered by the plan until he became 60 years and again afforded the opportunity.  The suspense of 90 calendar days for returning the completed RCSBP election begins upon receipt of the 20-year letter with instructions on completing an RCSBP election.

3.  Though the HRC, Chief, Retired Pay Branch, denied the applicant's request for SBP benefits and informed her that there is no DD Form 1883 on file showing that the FSM elected RCSBP coverage, the IWS contains a remark that the     DD Form 1883 was seen in his file.  Further, the applicant provides a DD Form 1883 showing the FSM authenticated the DD Form 1883 on 28 February 1994. 

4.  It appears the FSM may have returned his RCSBP election after the suspense date.  However, it appears HRC received and accepted the enrollment form given the date stamp on the form provided but failed to inform the FSM of any problem.  This failure on HRC's part would have led the FSM to reasonably believe he did, in fact, have coverage and have caused him to believe no other action was necessary.  By failing to inform the FSM that his RCSBP election was invalid he was deprived of an opportunity to look into other means (e.g., insurance) to provide financial security for his family.  
5.  In view of the foregoing, as a matter of equity, the FSM's records should be corrected at this time to show he had full immediate spouse and children coverage and that the applicant applied for the SBP annuity in a timely manner.

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 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 elected RCSBP coverage for his spouse and child and that she be paid an annuity based on the FSM's election to participate in the RCSBP, Option C, full amount of base pay, retroactive to 11 August 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)                                         AR20130006106



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ABCMR Record of Proceedings (cont)                                         AR20130006106



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