BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140000840 


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 record to show she filed a claim for a survivor benefit annuity on the day following the FSM's death and payment of unpaid benefits from that date.

2.  The applicant states she and the FSM were married the month prior to his retirement from the military.  She never got an identification card, shopped at a commissary, or otherwise did anything that would keep the military in mind.    She was not contacted by the military when the FSM died.  The military did not advise her of any benefits or timeframe for applying for such benefits.  She was not aware she was eligible to receive Survivor Benefit Plan (SBP) benefits until the subject arose during a social conversation.  She only got her identification card in 2003 when she was advised of her benefits by the Army National Guard (ARNG) at which time the FSM's military records still showed him as alive and married to his former spouse.  Since she received life insurance at his death she expected the military would know that the FSM was dead.  She believes the FSM's insurance agent and the funeral home took care of the paperwork for his insurance.  The FSM was diagnosed with cancer in 1996.  She was diagnosed with cancer in 1999 and she was still undergoing cancer treatments at the time the FSM died in May 2000.

3.  The applicant provides:

* personal statement
* Notification of Eligibility for Retired Pay at Age 60 (20 - Year Letter)
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* ARNG Current Annual Statement
* ARNG Retirement Points Statement Supplemental Detailed Report
* DD Form 2656-7 (Verification for Survivor Annuity)
* Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services)
* Financial Management Service Form 2231 (Direct Deposit)
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* U.S. Army Human Resources Command (HRC) denial letter
* copy of applicant's social security card
* DA Form 200 (Transmittal Record)
* Annuity Application Checklist
* FSM's Certificate of Death
* Marriage Certificate

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's record shows he enlisted in the ARNG on 26 November 1971.  He served in the ARNG until he was assigned to the Retired Reserve on 7 August 1992 after completing more than 20 years of service.  The highest rank he held was sergeant first class/pay grade E-7.  His date of birth was 10 August 1952.

3.  The applicant provided a marriage certificate which shows the FSM and she were married on 22 May 1992.

4.  On 14 July 1992, the FSM was issued a 20-year letter.

5.  The applicant provides a copy of a DD Form 1883, dated 15 September 1992.  This form shows the FSM elected to participate in the Reserve Component (RC) SBP for spouse only, immediate coverage based on the full amount of retired pay.  The form shows both the FSM and the applicant signed the form on 15 September 1992. 

6.  The applicant provided a death certificate showing the FSM's marital status as married, the applicant as his spouse, and that he died on 3 May 2000.

7.  A Defense Finance and Accounting Service (DFAS) letter to the applicant, dated 13 September 2013, stated in order for DFAS to pay the applicant SBP, her deceased spouse's branch of service must first authorize it. 

8.  An HRC letter to the applicant, dated 24 December 2013, stated that because the applicant's claim was not submitted with 6 years of accrual, the RC Retirements Branch did not have jurisdiction to consider her claim.  Therefore, her request for payment must be denied.

9.  Public Law 92-425 enacted 21 September 1972 established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

10.  Public Law 95-397 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) defer or decline to make an SBP election until beginning to draw retired pay at age 60; (B) provide an annuity beginning on the retiree's 60th birthday (if death occurs before age 60), or upon retiree's death (if age 60 or older upon death); (C) provide an annuity beginning on the day after retiree's death, regardless of retiree's age at death.

11.  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.  Evidence shows that the FSM's records contained a valid RCSBP election at the time of his death.  It also shows the applicant signed a DD Form 1883 in September 1992 designating her as the FSM's SBP beneficiary.  However, based on the applicant's explanation of the circumstances, it appears that she did not remember doing that and was therefore not aware that she was eligible for SBP benefits.  Given that the evidence clearly shows the applicant would have been otherwise eligible, it must be presumed that had she remembered her husband's SBP election that she would have filed a claim for SBP in a timely manner.

2.  In view of the foregoing, it would be in the interest of justice for the FSM's records to be corrected to show that his widow applied for the SBP annuity (spouse only, based on full amount of retired pay, and immediate annuity coverage) effective 4 May 2000, the day following the date of the FSM's death.  It would be inequitable to deny the widow the SBP annuity because of the passage of time.

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 that the applicant timely applied for the RCSBP annuity and that she be paid the annuity based on the FSM's election to participate in the RCSBP beginning on the day following the FSM's death on 3 May 2000.




      _______ _   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)                                         AR20140000840



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ABCMR Record of Proceedings (cont)                                         AR20140000840



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