IN THE CASE OF:
BOARD DATE: 2 September 2014
DOCKET NUMBER: AR20140000531
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 of the procedures until she applied for a new identification card and she was unaware that she had to apply for the FSMs benefits within a specified period of time.
3. 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 Guard (TXARNG) on 24 April 2003, which transferred the FSM to the Retired Reserve
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 31 March 2003
* applicants and FSMs marriage license and certificate
* FSMs State of Texas Certificate of Death
* a letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 10 September 2013, addressed to the FSM's former spouse
* a letter from the applicant, dated 29 October 2013, addressed to HRC
* NGB Form 23B (ARNG Retirement Points History Statement), dated
5 November 2013
* DD Form 2656-7 (Verification for Survivor Annuity), signed by the applicant on 18 November 2013, with allied documents
* a letter from HRC, dated 3 December 2013, addressed to the applicant
CONSIDERATION OF EVIDENCE:
1. On 1 June 1997, while serving in the TXARNG in the pay grade of E-7, the applicant was issued his 20-Year Letter.
2. On 13 July 1997, he submitted a DD Form 1883, in which he elected to participate in the RCSBP, with spouse and children coverage under option C, for immediate coverage based on the full amount of his retired pay.
3. On 19 November 2002, the FSM divorced his spouse in Johnson County, Texas.
4. On 31 March 2003, he was transferred to the Retired Reserve with over 25 years of creditable service for retired pay purposes.
5. On 21 December 2004, the FSM married the applicant in Texas. On 24 April 2006, he passed away at the age of 53.
6. On 10 September 2013, officials at HRC provided the FSM's former spouse with a list of documents needed to apply for the SBP annuity.
7. On 20 September 2013, the applicant submitted an application to HRC for an SBP annuity, based on the death of the FSM, her husband at the time of his death. On 18 November 2013, she completed a DD Form 2656-7 with allied documents. It appears she submitted these documents to HRC for processing.
8. On 3 December 2013, officials at HRC denied her application for an SBP annuity because she had not applied within 6 years of the FSMs death.
9. Public Law 95-397, the RCSBP, enacted 30 September 1978, provides a way for those who have qualified for reserve retirement, but who are 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 the service member dies before attaining 60 years of age, but delay payment of it until the date the member would have reached his/her 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon the member's 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).
10. Title 31, U. S. Code, section 3702, also known as the Barring Act, 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. The applicants contention that she was unaware of the requirements regarding the RCSBP is accepted. The FSM was in the Retired Reserve when he married the applicant and it is reasonable to presume that the applicant was not made aware of her entitlements at the time.
2. Therefore, it is apparent the applicant did not receive the proper counseling regarding her entitlements and thus resulted in her being denied benefits she was entitled to receive upon the death of the FSM.
3. 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. Given the FSMs 25+ years of service, his spouse is certainly deserving of favorable consideration for his service to his country. Further, documents verifying the applicants entitlements are readily available.
4. Accordingly, it would be appropriate to correct the FSM's records to show the applicant made a timely application for an SBP annuity within 1 year of the FSM's death.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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 25 April 2006, the day after her husbands death and that she be paid the annuity retroactive to that date.
_______ _ _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) AR20140000531
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ABCMR Record of Proceedings (cont) AR20140000531
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