IN THE CASE OF:
BOARD DATE: 27 May 2014
DOCKET NUMBER: AR20130014235
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. she requests she be allowed to receive the SBP and the 6-year statute of limitations for the SBP claim be waived.
b. after the FSM's death she tried to get her benefits started. She was not able to find any assistance because no one could give her any information and she began to get the run around. She was very confused and frustrated. She was sent from one department to another.
c. finally, after many years of not knowing what to do she contacted the U.S. Army Human Resources Command. She was informed her late husband had elected Option B where she would have to wait until the FSM's 60th birthday before she could receive her annuity payment. She was also informed that she was past the 6-year statute of limitations required by law.
d. she does not feel she should be penalized for the 6-year statute of limitations. She would have been entitled because the FSM did what he was supposed to do to make sure she would be provided for.
3. The applicant provides:
* FSM's death certificate
* Certificate of marriage
* Her Texas identification card and social security card
* DD Form 2656-7 (Verification for Survivor Annuity)
* Tax documents
* Power of Attorney
* Chronological Statement of Retirement Points
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 1 December 1946. He married the applicant on
27 June 1968. Having prior enlisted service in the Army National Guard (ARNG), he was appointed as a second lieutenant in the ARNG on 6 February 1971. He was appointed in the U.S. Army Reserve (USAR) in 1979.
3. In April 1991, the FSM received his 20-year letter.
4. His DD Form 1883 (SBP Election Certificate), dated 13 July 1991, shows the FSM elected spouse coverage, full amount, option B (Age 60).
5. He was assigned to the USAR Control Group (Retired) effective 19 October 1990 in the rank of major.
6. The FSM died on 24 May 1999 at age 52. His death certificate shows he was married to the applicant at the time of his death.
7. 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.
8. 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,
c. elect that a beneficiary receive an annuity immediately upon their death if before age 60, or
d. if death occurs before age 60, the RCSBP costs for option B and C are deducted from the annuity.
DISCUSSION AND CONCLUSIONS:
1. The FSM's DD Form 1883 which shows he elected spouse coverage, full amount, option B (Age 60), in 1991, is accepted as sufficient evidence on which to base correction of his records.
2. The FSM died on 24 May 1999. He would have reached age 60 in December 2006.
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 on 25 May 1999 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) AR20130014235
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ABCMR Record of Proceedings (cont) AR20130014235
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