IN THE CASE OF:
BOARD DATE: 11 February 2014
DOCKET NUMBER: AR20130009163
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, that she be paid a Survivor Benefit Plan (SBP) annuity based on the Reserve Component SBP (RCSBP) election of her deceased spouse, a former service member (FSM).
2. The applicant states, in effect, that she was unaware she was entitled to an SBP annuity until she received a letter from the Secretary of Defense notifying her that she might be eligible for TRICARE insurance. Her husband did not inform her of her eligibility for such benefits and neither did the Army when he passed away. She submitted all of the required documents to the U.S. Army Human Resources Command (HRC) and was informed that due to the statute of limitations she could not receive the pay unless a correction was made to the FSMs records.
3. The applicant provides copies of a letter from HRC, a DD Form 2656-7 (Verification for Survivor Annuity), marriage license, Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), the FSMs SBP Election Certificate, Direct Deposit Sign-Up Form, Form W-4P, Retirement Points Statement, and the FSMs death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM served in the Regular Army from 1969 to 1972 and was honorably released from active duty and was transferred to the U.S. Army Reserve (USAR) to complete his statutory service obligation.
2. On 18 June 1984, he enlisted in the Kentucky Army National Guard (KYARNG) and continued to serve through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 October 1994.
3. On 24 July 2002, he was issued his 20-Year Letter. On 18 August 2002, he submitted a DD Form 1883 in which he elected full spouse coverage under option C, for immediate coverage. The applicant also signed the election form.
4. On 31 May 2004, he was honorably discharged from the KYARNG and he was transferred to the USAR Control Group (Reinforcement).
5. The FSM passed away on 31 March 2005 at the age of 52.
6. In February 2013, the applicant applied for an RCSBP annuity
7. On 22 March 2013, HRC notified the applicant that her request for an SBP annuity was denied because she had exceeded the statute of limitations which required that she file a claim within 6 years. She was advised to apply to this Board.
8. 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 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).
9. Title 31, U. S. Code, section 3702 prohibits the payment of a claim against the Government unless the claim has been received within 6 years after the claim accrues.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant signed the RCSBP election form, the Board accepts the applicants contention that she was not properly counseled regarding the RCSBP. The FSM had only been discharged from the KYARNG for about
10 months when he passed away and it appears that the applicant did not receive the assistance necessary to ensure that she was made aware of her entitlements at the time. A reasonable person would not wait nearly 8 years to apply for an annuity to which she was entitled had she been properly informed.
2. One of the reasons behind the Barring Act is to relieve the Government of excessive paperwork and prevent stale, baseless claims which the government cannot substantiate. Documents verifying the applicants entitlements are readily available.
BOARD VOTE:
___X____ ___X____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 applicant applied for an RCSBP annuity, on 1 April 2005, the day after her husbands death and that she be paid the annuity retroactive to that date.
2. The Board wants the applicant and all others to know that the sacrifices made by her late husband in service to the United States are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20130009163
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130009163
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140003182
The applicant, the widow of a deceased former service member (FSM), requests correction of the FSM's military records to show her as his spouse with eligibility to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity. There is no record of him receiving his 20-Year Letter. There is no available evidence showing the FSM ever received a 20-year letter.
ARMY | BCMR | CY2014 | 20140000531
The applicant requests, in effect, that she be paid a Survivor Benefit Plan (SBP) annuity based on the Reserve Component SBP (RCSBP) election of her deceased spouse, a former service member (FSM). The applicant provides a copy of the: * FSMs Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 1 June 1997 * FSMs DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 13 July 1997 * FSMs Divorce Decree * Orders 114-1024, issued by the Texas Army National...
ARMY | BCMR | CY2014 | 20140000531
The applicant requests, in effect, that she be paid a Survivor Benefit Plan (SBP) annuity based on the Reserve Component SBP (RCSBP) election of her deceased spouse, a former service member (FSM). The applicant provides a copy of the: * FSMs Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 1 June 1997 * FSMs DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 13 July 1997 * FSMs Divorce Decree * Orders 114-1024, issued by the Texas Army National...
ARMY | BCMR | CY2014 | 20140020468
The applicant requests the DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP)) of her deceased husband a former service member (FSM) be corrected to show he elected Option C (Immediate Annuity) instead of Option A (I decline to make an election until age 60). 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...
ARMY | BCMR | CY2012 | 20120005565
The applicant requests correction of the records of her deceased husband, a former service member (FSM), to show he elected spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP). The applicant provides medical records showing the FSM underwent treatment for brain and lung cancer beginning in March 2010. The evidence of record does not support the applicant's request for correction of the FSM's record to show he elected spouse coverage under the RCSBP.
ARMY | BCMR | CY2012 | 20120003512
BOARD DATE: 21 August 2012 DOCKET NUMBER: AR20120003512 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. 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: * elect to decline enrollment and choose at age 60 whether to start SBP...
ARMY | BCMR | CY2014 | 20140001988
The applicant requests payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM). 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. As a result, the Board recommends that all Department of the Army records of...
ARMY | BCMR | CY2015 | 20150001874
The applicant states: * it was the intent of her husband that she receive an annuity based on his election on the DD Form 1883 (SBP Election Certificate) he completed in November 1989 * the FSM died on 25 May 2005 and she was under the impression that she would need to wait until she was 65, just like Medicare and social security, to apply for the SBP * she did not know nor was she informed by the Alabama Army National Guard (ALARNG) that she should have applied for the annuity at the time...
ARMY | BCMR | CY2013 | 20130011221
The applicant provides copies of their marriage certificate; the FSM's death certificate, service records, an SBP election, and request for retired pay; and the denial. The DD Form 1883 also shows the FSM and a witness, apparently a member of the FSM's unit, placed their signatures on the document on 29 June 1993. c. Two DD Forms 108 (Application for Retired Pay Benefits), both dated 15 October 2011, and two DD Forms 2656 (Data for Payment of Retired Personnel), both unsigned and undated,...
ARMY | BCMR | CY2011 | 20110003699
She further states that she submitted all of the required documents to the Human Resources Command and was informed that due to the statute of limitations she could not receive the pay unless a correction was made to the FSMs records. He was still serving in the LAARNG when he died on 4 September 2004. 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 an RCSBP annuity, on 5 September...