IN THE CASE OF:  	  

		BOARD DATE:  7 January 2015	  

		DOCKET NUMBER:  AR20140007184 


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 her barred claim to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity be granted dating back to her spouse's death.

2.  The applicant states:

   a.  She believes she was misinformed by a Soldier working at the South Carolina Army National Guard (SCARNG) Benefit Center.  On 15 March 2001, approximately six months after her husband's death, she went to the benefits office to report the death and receive a new identification (ID) card reflecting her widowed status.  She was told she could receive a new ID card; however, she would not be able to receive any of his benefits until the year in which her husband would have turned age 60, despite the fact her spouse elected          Option C on his DD Form 1883 (Survivor Benefit Plan Election Certificate), which would have given her immediate benefits upon his death.

   b.  Based on the information she received in March 2001, she did not inquire about the RCSBP annuity until 13 September 2010, three months after what would have been her spouse's 60th birthday.  She sent a copy of the marriage certificate and death certificate to the Defense Finance and Accounting Service (DFAS) in London, KY; however, she never received a response.

   c.  By this time she was unsure of her eligibility and the status of her request.  She received a letter from the Tricare Service Center and was told to contact the SCARNG Retirement Services Office (RSO).  In January 2014, she contacted the SCARNG RSO who assisted her in filling out a DD Form 2656-7 (Verification for Survivor Annuity) which was mailed to the U.S. Army Human Resources Command (HRC).
   
   d.  She understands the statue of limitations on her case; however, the delay was no fault of her own.  She diligently sought out information and assistance and was misinformed on numerous occasions.  She is a 64-year-old widowed military spouse on a fixed income.  Her husband served honorably for 22 years while she and her children actively supported him.  She sincerely hopes she will be awarded the benefits dated back to her husband's death. 

3.  The applicant provides:

* License and Certificate for Marriage
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Orders 8-2
* Notice of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* DD Form 1883 
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Army National Guard Current Annual Statement
* Orders 30-1
* Certificate of Death
* DD Form 1884 (Application for Annuity Under the Retired Serviceman's Family Protection Plan and/or Survivor Benefit Plan)
* 4 letters
* DD Form 1173-1 (Identification and Privilege Card)
* NGB Form 23C (Army National Guard Retirement Points History Statement Application for Retirement Pay)
* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 2656-7 

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 26 June 1950.

3.  The FSM and applicant were married on 16 August 1972.

4.  The FSM's NGB Form 22 shows he enlisted in the ARNG on 24 October 1972.

5.  The applicant provides and the FSM's record contains a Notice of Eligibility for Retired Pay at Age 60 (20-Year Letter), prepared on 20 December 1992.

6.  The applicant provides and the FSM's record contains a DD Form 1883, dated 28 January 1993, showing he elected to participate in the RCSBP for spouse and children coverage, full base amount, option C (immediate coverage).  This form indicates four dependent children.  It was witnessed by a member of his unit then serving as a staff sergeant as verified by iPERMS (interactive Personnel Electronic Records Management System).

7.  The FSM's NGB Form 22 shows he served in the SCARNG until 23 October 1994, when he was transferred to the U.S. Army Reserve Control Group (Retired).  He had completed a total of 22 years of total service for pay and
 20 years of creditable service.

8.  The FSM died on 5 September 2000.  His death certificate indicates he was married and lists the applicant as his spouse.

9.  DFAS has no RCSBP record for the FSM.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

11.  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.  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 they die before age 60 but delay payment of it 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.  If the member dies before reaching age 60, premiums are deducted from the annuity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have her barred claim to receive an RCSBP annuity   dating back to her spouse's death paid has been carefully examined and found to have merit.

2.  The FSM's 20-Year Letter is dated 20 December 1992.  Evidence shows he completed a DD Form 1883 and signed the form on 28 January 1993.  At that time, he elected full immediate RCSBP for spouse and children.

3.  The applicant has doggedly pursued an entitlement which is rightfully hers to receive.  Unfortunately, it appears she was misinformed on more than one occasion.

4.  In view of the foregoing and as a matter of equity, the records should be corrected to show that on 6 September 2000 the applicant submitted an application for her annuity which was also received and processed in a timely manner.

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 FSM be corrected by showing the applicant submitted her application for payment of the RCSBP annuity on 
6 September 2000 and paying her 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)                                         AR20140007184





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ABCMR Record of Proceedings (cont)                                         AR20140007184



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