IN THE CASE OF:	

		BOARD DATE:	    29 April 2014

		DOCKET NUMBER:  AR20130014097 


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 correction of the records of her deceased husband, a former service member (FSM), to show he elected full spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) and payment of SBP annuity benefits retroactively to the time of the FSM's death.

2.  The applicant states the FSM retired on 4 March 2004 and died on 4 July 2004.  As the surviving spouse, she should have been entitled to receive benefits under the RCSBP, but her application for benefits was denied.  She further states that the FSM was automatically enrolled in RCSBP when he received his 20-year letter, dated 20 July 2002, reflecting her as his designated beneficiary.  He never applied for retired pay prior to his death on 4 July 2004; however, this does not affect a surviving spouse's eligibility to receive SBP benefits.  Therefore, the prior denial of her application for benefits was improper. 

3.  The applicant provides:

* Veterans Services Administrator's letter to the Board
* her and the FSM's marriage license
* FSM's Army National Guard (ARNG) Retirement Points History Statement, dated 23 January 1997
* a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (NOE), dated 29 January 1997
* a memorandum, subject:  NOE, dated 20 July 2002
* The Adjutant General, State of Georgia Orders 076-009
* the FSM's certificate of death
* FSM's ARNG Retirement Points History Statement, dated 9 July 2004
* retention beyond age 60 approval
* DD Form 1300 (Report of Casualty)
* correspondence from the Chief, Transition and Separations Branch, U.S. Army Human Resources Command (HRC)
* correspondence from the Chief, Case Management Division, Army Review Boards Agency (ARBA) 

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 6 October 1943.  On 29 January 1997, the Georgia ARNG (GAARNG) notified the FSM he had completed the required years of service to be eligible for retired pay upon application at age 60.  There is no record of an RCSBP election made at that time.

3.  On 20 July 2002, the Department of Defense Military Division State of Georgia re-issued a NOE to the FSM.  The notification letter stated, in pertinent part, that Public Law 106-398, 30 October 2000, required that upon receipt of this letter, a qualified Reserve Component member, who was married, would automatically be enrolled in the RCSBP under option C, Spouse and Child(ren) coverage based on full retired pay, unless different coverage was selected within 90 days of receipt of the letter.  Notarized spousal concurrence was required in order to decline full and immediate coverage for annuitants.  The NOE stated, "FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND CHILD(REN).  If you elect to remain covered under the automatic provision of the Law you must provide this Command written correspondence (the enclosed DD Form 2656-5 (formally [sic] DD Form 1883) is required) stating who you have designated as annuitant(s)."  There is no record of a DD Form 2656-5 (RCSBP Election Certificate).

4.  On 4 March 2004, the FSM was transferred to the Retired Reserve.
5.  The applicant provides a letter from the Chief, Transition and Separations Branch, HRC, dated 20 July 2004, in response to her inquiry concerning her eligibility for an RCSBP annuity based on the FSM's military service.  HRC stated that an individual must apply for his or her retired pay to receive it.  Since the FSM did not apply for retired pay the applicant was not eligible for an SBP annuity.

6.  The applicant also provides:

	a.  a marriage license showing she married the FSM on 27 August 1966;

   b.  a certificate of death showing the FSM died on 4 July 2004 at 60 years of age and was married to her at the time; and 
   
   c.  A Veterans Services Administrator statement on her behalf.  He stated that although the FSM's original NOE is silent on the RCSBP issue, the second (re-issued) letter notes that:

Upon receipt of this Letter, a qualified Reserve Component member, who is married, would automatically be enrolled in the RCSBP under option C, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS different coverage is selected within 90 days of receipt of the letter.

      (1) He stated the applicant and FSM were married in 1966 and remained married until the FSM's death.  Accordingly, the "automatic enrollment" referred to in the 2002 NOE clearly applied to the FSM and applicant.  Nothing in the re-issued NOE gave the FSM or the applicant any indication that she would not be eligible for RCSBP unless the FSM had already applied to receive retirement pay.  He further stated that while the 20 July 2004 denial letter from HRC may have been correct in stating that eligible Reserve retirees must apply for their retirement pay when they reach age 60, he is not aware of any legal authority to support the statement that since the FSM "did not apply for retired pay you are ineligible for an annuity." 
   
		(2) Likewise, the 8 December 2005 letter from ARBA does not identify any legal authority to support its apparent assertion that the FSM was required to elect the RCSBP ("no one has been able to find any document that indicates that your late husband elected the Reserve Survivor Benefit Option.")

		(3) In conclusion he states the FSM was automatically enrolled in the RCSBP when he received his second NOE letter in 2002.  He never took any steps to change that automatic coverage, and so – when he died a few months after his March 2004 retirement – that "automatic enrollment" was still in effect.
7.  A letter from the Chief, Case Management Division, ARBA, dated 8 December 2005, shows the Board informed the applicant that the Board had not identified an ABCMR related issue to address following communication with Mr. H, Georgia Retirement Services, who advised that after an extensive search no one had been able to find any document that indicated the FSM elected the RCSBP option.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for service members 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 member’s 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay. 

9.  Public Law 106-398 required Reserve and Guard members, who had completed their service obligation, were considered entitled for retired pay, but who were not yet age 60, to obtain their spouse’s concurrence in RCSBP elections that did not provide maximum spouse coverage (immediate option).  This applied to members receiving notification of service completion after 1 January 2001.

10.  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.  There is no evidence showing the FSM made an RCSBP election at the time he was issued the original NOE in January 1997.  As such, his RCSBP election would have defaulted to option A (elect to decline enrollment and choose at age 60 whether to start SBP participation).

2.  It is not clear why the State of Georgia re-issued the FSM an NOE in 2002 which stated the FSM was automatically enrolled in RCSBP unless he elected alternative coverage.  .

3.  Though it is unknown why the FSM did not apply for retired pay at his retirement from the ARNG, evidence shows he was eligible for retired pay for the period 5 March 2004 through 4 July 2004.  There is no evidence the applicant received the FSM's retired pay in arrears.

4.  In view of the foregoing, it would be appropriate and serve the interest of equity to correct the FSM's record to:

* show he timely applied for retired pay
* show an election for spouse coverage based on his full retired pay was processed at that time
* pay the applicant any retired pay in arrears
* provide the applicant the SBP annuity based on his full retired pay from the day after the FSM's death
* all premium costs associated with this change will be borne by the applicant

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 he timely applied for retired pay to be effective upon attaining age 60
* showing an election for spouse SBP coverage based on his full retired pay was processed at that time
* paying the applicant any retired pay in arrears
* providing the applicant the SBP annuity based on the FSM"s full retired pay from the day after his death
* showing all premium costs associated with this change will be borne by the applicant




      _______ _ 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)                                         AR20130014097



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ABCMR Record of Proceedings (cont)                                         AR20130014097



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