IN THE CASE OF:	  

		BOARD DATE:	    8 May 2014

		DOCKET NUMBER:  AR20130015297 


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 reconsideration of her previous request for correction of the records of her late husband, a former service member (FSM), to show she is the eligible beneficiary for a Reserve Components Survivor Benefit Plan (RCSBP) annuity based on the FSM's death.

2.  The applicant states:

   a.  It was never her husband's intent to not provide an RCSBP annuity to her which is evident by the DD Form 1883 (SBP Election Certificate), dated 17 January 1996, which was a "Change of Marital Status."  The DD Form 1883, dated 28 December 1992, which the Board referenced, shows a "children only" RCSBP election; however, she and the FSM were married on 28 February 1992. All military documents were updated while her husband was still in the service and prior to his retirement on 21 July 1997.

   b.  She was misled at the time of his death, as shown in the copies of the letters she is submitting that states her entitlements would start at age 60.  For example, in the letter from the U.S. Army Human Resources Command (HRC) dated 20 October 2000 she was advised that she qualified for an SBP annuity, her packet was received on 14 November 2000, and it was being processed.  She just doesn't understand why it was denied due to the paperwork being there. She was unaware she would receive an SBP annuity from her husband because of his death due to all of the confusion with various agencies which did not assist her at all.
   c.  When she requested assistance she was informed that she didn't qualify for anything.  She was discouraged about the entire situation.  After completing paperwork she was not advised until several months later that she would not receive SBP annuity payments until her husband's 60th birthday and she would be notified 60 to 90 days before his 60th birthday since her husband had elected Option C (Immediate Coverage).  There was no need for her to keep calling.

   d.  On 23 July 2012, she was notified by Mr. Rxxxx Bxxxxx from the Survivor Outreach Services Branch that they had received a call from HRC to assist her in the preparation of the SBP packet, which she completed on 23 July 2012. 
Mr. Bxxxxx submitted the packet to HRC.  She received the denial letter from HRC that stated the statute of limitations had run out.

   e.  Her request was denied due to misleading information at the time of her husband's death in that she was disregarded and mistreated because she didn't know.  She made every attempt and she was told she didn't qualify.  She did her part and her husband's wishes were totally disregarded.  He did his part, but no one helped her when she requested help.  She was denied an RCSBP annuity because her husband didn't make an election within 90 days of receipt of the   20-Year letter and submit a written request for spouse coverage within one year of marriage.

   f.  The evidence submitted does confirm that her husband did in fact elect her to receive RCSBP prior to his retirement.  It was her husband's intent while he was still in an active status to provide immediate spouse coverage in the event of his death.  He never received confirmation from the Defense Finance and Accounting Service that his "Change of Marital Status" election was received.  He was probably unaware of the requirements to participate in the RCSBP.

   g.  In conclusion, she knows that it was her husband's intent to provide her SBP protection and she was unaware of the requirements to participate in the RCSBP.  There was a lack of instruction from different agencies pertaining to the SBP entitlements.  Her husband intended to provide an immediate SBP annuity to her while he was still in an active status.  This ordeal had been very frustrating for her over the last 13 years and prompt attention to this request/appeal is solicited.  

3.  The applicant provided copies of the following:

* their marriage license
* FSM's 20-Year Letter
* DD Form 93 (Record of Emergency Data)
* 1996 DD Form 1883 (front page)
* SGLV 82-86 (Servicemen's Group Life Insurance Election and Certificate)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* FSM's death certificate
* letter from the Alabama Army National Guard (ALARNG) State Military Department
* two letters from HRC

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120016619, on 30 May 2013.

2.  The applicant provided a copy of an SGLV Form 8286 and new argument.  This is new evidence and will be considered by the Board.

3.  The FSM was born on 18 October 1952 and he enlisted in the ALARNG on 19 April 1975 with prior Regular Army enlisted service.  

4.  The applicant provided a copy of a marriage license which shows she and the FSM were married on 28 February 1992.  

5.  On 23 November 1992, the FSM was issued a 20-Year letter.  

6.  The applicant also provided copies of and the FSM's record contains the following:

   a.  A DD Form 1883, dated 28 December 1992, wherein the FSM completed the form and indicated he was not married and had dependent children.  He elected immediate SBP coverage for "children only."  He listed on the form a son with a date of birth of XX October 1975. 

   b.  An SGLV 8286, dated 25 May 1995, wherein the FSM designated the applicant and his son as beneficiaries for his insurance proceeds.

   c.  A "Change of Marital Status" DD Form 1883, dated 17 January 1996, wherein the FSM completed and indicated he was married to the applicant on 10 September 1993 and he elected immediate SBP spouse coverage.  The form was signed by the FSM and applicant on the same date.  The back page of the form stated, "Option C – I elect to provide an immediate annuity beginning on the day after date of my death whether before or after age 60."  The form appears to contain a date stamp on the reverse, indicating a government office accepted the document.
   
7.  The FSM was honorably discharged from the ALARNG on 21 July 1997 and was transferred to the Retired Reserve.

8.  The FSM died on 13 October 2000.  His death certificate indicates he was married to the applicant.  

9.  The applicant further provided copies of and the FSM's record contains the following:

   a.  A letter, dated 20 October 2000, wherein the ALARNG State Military Department provided her a DD Form 1998 (Application for Annuity) to complete and file for compensation.

   b.  A letter, dated 14 November 2000, wherein HRC advised her of receipt of her claim for an annuity and of her entitlement to a Commissary Privilege Card and a Uniformed Services Identification and Privilege Card on the date the FSM would have attained age 60.  

10.  The FSM would have attained age 60 on 18 October 2012.

11.  The applicant also provided copies of the following:

   a.  A letter, dated 23 July 2012, wherein HRC provided her a DD Form 2656-7 (Verification of Survivor Annuity) to complete and return to them to obtain benefits from her spouse's service.  

   b.  A letter, dated 27 July 2012, wherein HRC advised her of the denial of payment of her claim based on the statute of limitations since her husband died on 13 October 2000 and the statute of limitations went into effect on 13 October 2006 in the filing of her claim.

12.  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. 

13.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

14.  There was no SBP Open Enrollment Season between March 1993 and October 2005.

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.  It is acknowledged that the applicant provided a marriage license showing she and the FSM were married in February 1992.  However, upon receipt of his      20-Year letter in November 1992, the FSM completed a DD Form 1883 wherein he indicated he was not married and elected "children only" SBP coverage.  That coverage would have been suspended in either 1993 or 1996 based on the child’s age and/or school attendance.  

2.  On 17 January 1996, the FSM completed a "Change of Marital Status" 
DD Form 1883 electing "spouse" coverage indicating he married the applicant on 10 September 1993.  Notwithstanding the FSM listing a later date of marriage on this form than the date shown on the marriage license, by law he was required to submit a written request for RCSBP spouse coverage within one year of the marriage, either by 28 February 1993 or 10 September 1994, to become eligible to participate in the RCSBP.  There is no evidence and the applicant did not provide sufficient evidence showing this was done in a timely manner.

3.  The apparent acceptance of the DD Form 1883 by a government office is not a fatal flaw.  Even if the FSM had been notified that the form was invalid, there was no SBP Open Enrollment Season during which he could have properly elected spouse coverage.

4.  The FSM died on 13 October 2000.  The applicant stated she submitted a request for an SBP annuity as early as 2000 and the HRC letter, dated 14 November 2000, notified her of the receipt of her claim.  However, there is no evidence and she did not provide sufficient evidence showing her request was processed and/or denied at the time.  
5.  In any case, had her claim been processed in 2000 she would not have been eligible for an RCSBP annuity in accordance with the law due to the absence of a written request for spouse coverage within one year of her and the FSM's marriage.  Based on this, the statute of limitations criterion is irrelevant.

6.  The 2000 letter from HRC only advised the applicant of her entitlement to a Commissary Privilege Card and a Uniformed Services Identification and Privilege Card on the date the FSM would have attained age 60.  That letter does not indicate she was advised of entitlement to an RCSBP or SBP annuity starting at age 60.  

7.  Unfortunately, there is an insufficient evidentiary basis for granting the applicant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120016619, dated 30 May 2013.



      _______ _   _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)                                         AR20130015297



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ABCMR Record of Proceedings (cont)                                         AR20130015297



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