BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140001988 


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 payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM). 

2.  The applicant states she was unaware of her benefits and the steps that she needed to take to get her benefits.  Her husband passed away in 2003.  She was told the statute of limitations went into effect in 2010 for filing her claim. 

3.  The applicant provides:

* Certificate of Death
* Certified copy of her marriage certificate
* Letter from the U.S. Army Human Resources Command (HRC)
* DD Form 2656-7 (Verification of Survivor Annuity)
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* Army National Guard (ARNG) Retirement Points History Statement
* DD Form 1883 (SBP Election Certificate)
* Direct Deposit Sign-Up Form
* Form W-4 (2014)
* Social security card

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 records show he was born in March 1952.  Having had prior service, the FSM enlisted in the Iowa Army National Guard (IAARNG) on 7 July 1975.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of staff sergeant (SSG)/E-6. 

3.  The FSM and Cindy, the applicant, were married on 14 February 1988. 

4.  On 8 December 1992, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  On 15 January 1993, the FSM completed a DD Form 1883.  He indicated he was married to Cindy and they had two dependent children.  He elected participation in the Reserve Component SBP (RCSBP), spouse coverage, Option C (immediate coverage) based on the full amount.  His spouse, Cindy, the applicant, concurred with his election.  

6.  The FSM was discharged from the ARNG on 6 February 1993.  He was transferred to the Retired Reserve. 

7.  The FSM died on 11 February 2003.  He was 50 years of age.  His death certificate shows he was married to the applicant at the time of death. 

8.  On an unknown date subsequent to his death, an HRC official notified the applicant that the law (Title 31, U.S. Code, section 3701), requires a claim to be submitted within 6 years of accrual.  If the claim is not submitted within 6 years, the claim is barred.  The FSM died on 11 February 2003 and the statute of limitations in her claim went into effect on 4 April 2010.  Therefore, her request must be denied. 

9.  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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.
10.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available: 

* Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C: elect that a beneficiary receive an annuity immediately upon their death if before age 60

11.  Title 31 U. S. Code (USC), 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.  The applicant and the FSM were married on 14 February 1988.  He was transferred to the Retired Reserve on 6 February 1993.  Prior to his retirement and in connection with the receipt of his 20-Year Letter, the FSM elected to participate in the RCSBP, spouse coverage, under Option C (immediate annuity) based on the full amount.  Option C means a member elects that a beneficiary receives an annuity immediately upon their death if before age 60.

2.  The FSM died on 11 February 2003.  At that time, officials at the IAARNG should have assisted the applicant with filing her claim for the SBP annuity.  For unknown reasons, this did not happen.  The applicant became aware of her right and the procedures to apply for the annuity at some point after the 6-year mark.  Unfortunately, by then, the Barring Act went into effect.  It is reasonable to presume if she had been aware of the Army's techniques and procedures she would have filed her claim shortly after the FSM's death.  

3.  Therefore, she is entitled to correction of her deceased husband's records to show she timely submitted her claim for the SBP annuity and it was timely received and processed by the appropriate office. 
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 made a timely claim for the SBP annuity the day after her husband died
* showing her claim for the annuity was timely received and processed by the appropriate office in a timely manner
* paying the applicant the SBP annuity retroactive to the day after the FSM's death, provided this action is not in contradiction with any other statutes



      _______ _   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)                                         AR20140001988



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ABCMR Record of Proceedings (cont)                                         AR20140001988



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