BOARD DATE: 28 January 2014
DOCKET NUMBER: AR20130006897
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, in effect, correction of the FSM's military records to show she applied for the Survivor Benefit Plan (SBP) annuity in a timely manner.
2. The applicant states:
a. The statute of limitations regarding payment of the SBP should be reinstated because she was unaware of the SBP and she never received documentation from the Alabama Army National Guard (ARNG) Retired Activities Branch.
b. She was unaware she was entitled to receive SBP payments upon her husband's death. Upon his death, she received the Servicemembers' Group Life Insurance payment and, having received this large sum of money, she thought that was her settlement for her husband's service.
c. She recently got her identification card updated and was informed of the SBP. She filled out forms and her request for SBP was denied due to the statute of limitations.
3. The applicant provides:
* letter from the Defense Finance and Accounting Service (DFAS), Indianapolis, IN, dated 29 March 2013
* letter from DFAS to a Member of Congress, dated 29 March 2013
* letter from a Member of Congress, dated 14 March 2013
* letter from the U.S. Army Human Resources Command, Fort Knox, KY, dated 1 October 2012
* DD Form 1883 (SBP Election Certificate)
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* National Guard Bureau Form 22 (Report of Separation and Record of Service
* ARNG Retirement Points History Statement
* Certificate of Marriage
* Certificate of Death
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 29 June 1949. Having prior enlisted service in the U.S. Marine Corps, he was appointed as a second lieutenant in the ARNG on 21 June 1980. He married the applicant on 15 July 1989.
3. In May 1993, the FSM received his 20-year letter.
4. The applicant provided a DD Form 1833, dated 12 July 1993, which shows the FSM elected spouse coverage, full amount, option C (immediate coverage).
5. He was promoted to lieutenant colonel on 7 August 1997.
6. The FSM died on 5 March 2001 at age 51. His death certificate shows he was married to the applicant at the time of his death.
7. The applicant provides a letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 1 October 2012, which states her request for SBP payment was denied due to the statute of limitations (claim must be filed within 6 years of the date it first occurred in this case 5 March 2001).
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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.
9. Public Law 95-397, the Reserve Component SBP, 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. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. Three options were available:
a. elect to decline enrollment and choose at age 60 whether to participate in the SBP,
b. elect that a beneficiary receive an annuity if they die before age 60 but delay payment until the date of the member's 60th birthday, or
c. elect that a beneficiary receive an annuity immediately upon their death if before age 60.
DISCUSSION AND CONCLUSIONS:
1. The DD Form 1883 provided by the applicant which shows the FSM elected spouse coverage, full amount, option C (immediate coverage), in 1993, is accepted as sufficient evidence on which to base correction of his records.
2. The FSM died on 5 March 2001. He would have reached age 60 in June 2009.
3. In view of the foregoing, the Army's records should be corrected to show the applicant applied for the SBP annuity and returned the application to the appropriate office in a timely manner. SBP premiums should be deducted from the annuity.
BOARD VOTE:
__X___ ____X____ __X______ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 SBP annuity and returned the application to the appropriate office where it was processed in a timely manner.
2. Based on this correction, DFAS should pay the applicant the SBP annuity retroactive to the day after the FSMs 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) AR20130006897
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ABCMR Record of Proceedings (cont) AR20130006897
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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