IN THE CASE OF:	    

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140013131 


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, correction of the records of her late husband, a former service member (FSM), to show she is eligible for a Reserve Components Survivor Benefits Plan (RCSBP) annuity.  

2.  The applicant states:

   a.  She should have been eligible to receive her husband's RCSBP; however, she was never advised by the Alabama Army National Guard (ALARNG) that she was eligible.  The error of not receiving the benefit was not realized until the       6-year statute of limitations had expired.

   b.  Her husband received his 20-Year letter, dated 2 June 2003.  He was still serving as an ALARNG member when he died on 11 June 2006.  No one ever met with her to discuss possible benefits that she should be receiving.  The error was discovered in September 2012.  She should have been receiving benefits since the date of her husband's death.

3.  The applicant provides copies of the FMS's:

* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) (2 copies)
* two ARNG Current Annual Statements
* DD Form 1300 (Report of Casualty)
* death certificate (2 copies)

* their marriage certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Standard Form (SF) 1199A (Direct Deposit Sign-Up Form)
* Deposit Ticket
* letter from the U.S. Army Human Resources Command (HRC)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 11 October 1957.  He and the applicant were married on 9 August 1980.

2.  The FSM enlisted in the ALARNG on 17 May 1983.

3.  On 2 June 2003, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  The letter advised the FSM that he was eligible to participate in the RCSBP.  The letter also advised him of the following:

   a.  Public Law 106-398, 30 October 2000, required that upon receipt of that letter, a qualified RC member, who was married, would automatically be enrolled in the RCSBP under option C, spouse and child(ren) coverage based on full retired pay, unless different coverage was selected within 90 days of receipt of that letter.  Notarized spousal concurrence was required in order to decline full and immediate coverage for annuitants.

   b.  Failure to meet that requirements would result in the retention of full coverage for their Spouse and Children.  If he elected to remain covered under the automatic provision of Law he must provide that command written correspondence (the enclosed DD Form 2656-5 (RCSBP Election Certificate) (formerly DD Form 1883 (SBP Election Certificate) stating who he had designated as annuitant(s).

   c.  The cost for that participation would commence upon receipt of retired pay at age 60.

4.  The instructions for DD Form 2656-5 stated, "If you did not submit this form as required, your election, if any, will be determined by law."

5.  There is no evidence the FSM completed a DD Form 2656-5 within 90 days of receiving his 20-Year letter.



6.  The applicant provided copies of the following:

   a.  An ARNG Current Annual Statement, dated 13 June 2005, which shows the FSM was credited with completing 22 years of qualifying service for retired pay as of 17 May 2005.

   b.  A DD Form 1300, dated 29 July 2006, which shows the FSM, while a member of the ALARNG, died on 11 June 2006 as a result of complications of cardiovascular disease.  The form indicated his Servicemembers' Group Life Insurance (SGLI) principal beneficiary was his spouse (the applicant) and she was issued a payment of the SGLI by check, dated 15 May 2006 (15 June 2006).

   c.  A death certificate which shows she was married to FSM on the date of his death.  He was 48 years of age at the time of death.

   d.  An ARNG Current Annual Statement, dated 17 September 2012, which shows the FSM was credited with completing 23 years of qualifying service for retired pay as of 17 May 2006.

   e.  A DD Form 2656-7, W-4P, SF 1199A, and Deposit Ticket she completed on 21 September 2012 for the RCSBP benefit.

   f.  A letter, dated 23 July 2014, wherein HRC advised the applicant, in reference to her eligibility for an RCSBP annuity based on the military service of her late husband, that effective 2 July 1975, the Statute of Limitations (Title 31, U.S. Code (USC), section 3701) required that a claim be submitted within 6 years of accrual.  If it was not submitted within the required 6 years, the claim was barred and the RC Branch did not have jurisdiction to consider it.  The FSM died on 11 June 2006.  The statute of limitations on her claim went into effect on 11 June 2012.  Therefore, her request for payment must be denied and her application was being returned.  She was advised she could apply to the Army Board for Correction of Military Records.

7.  On 20 August 2014, a staff member of the Defense Finance and Accounting Service verified their office did not have any documentation on the FSM and there was no retired pay account reflected.  

8.  The FSM would have reached age 60 on 11 October 2017.




9.  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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.  If death occurred before age 60, the RCSBP costs for options B and C were deducted from the annuity.

10.  Public Law 106-398, enacted 30 October 2000, required that upon receipt of the 20-Year letter, a qualified RC member who was married, be automatically enrolled in the RCSBP under option C (spouse and children coverage), based on the full amount of retired pay, unless the spouse's concurrence was provided to allow one of the following elections:

* Option A (defer enrollment to age 60)
* Option B (enroll and pay annuity when member would have been age     60 for spouse or spouse and children at less than maximum amount or enroll children only)
* Option C (enroll and pay an annuity immediately upon death, but enroll spouse or spouse and children at less than maximum amount or enroll children only)

11.  Public Law 106-398 further provided that the law was applicable to cases where 20-Year letters have been issued after 1 January 2001.  In other words, failure to elect an option now resulted in the default election of Option C.

12.  Title 31, USC, section 3702, prohibits the payment of a claim against the U.S. Government unless the claim has been received within 6 years after the claim accrues.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's 20-Year letter, dated 2 June 2003, advised him that if he did not make an election within 90 calendar days, he would be automatically enrolled in 



the RCSBP for spouse and child(ren).  The cost for that participation would begin upon his receipt of retired pay.  If he elected to remain under the automatic coverage he was required to submit a DD Form 2656-5 stating his designated annuitant.

2.  By law, the FSM was automatically enrolled in the RCSBP under option C, spouse and child(ren) coverage based on full retired pay.  Also by law, if death occurred before age 60, the RCSBP costs for options B and C were deducted from the annuity.

3.  There is no evidence of record and the applicant provided none showing the FSM made an election when he received his 20-Year letter; therefore, he was automatically enrolled in option C.  It appears, the FSM made no attempt to change the automatic coverage prior to death and he did not have the power to do so without the applicant's concurrence.  If he did not submit the DD Form 2656-5, his election, if any, would be determined by law.  Therefore, the only intent clearly proven is that he intended to provide the automatic RCSBP spouse coverage to the applicant.

4.  The FSM, while serving as a member of the ALARNG, died on 11 June 2006. The applicant was married to the FSM at the time of death.  The applicant's claim for an RCSBP annuity was denied by DFAS in July 2014 because her claim was not filed within 6 years of his date of death.

5.  DFAS verified that there was no retired pay account (meaning the FSM had not applied for nor was he receiving retired pay).  The FSM would have reached age 60 on 11 October 2017.

6.  Considering the facts and circumstances of this case, it would now be appropriate as a matter of fairness and equity to correct the records to show the applicant applied for an RCSBP annuity on 12 June 2006, as the spouse beneficiary of the FSM, the day following his death (12 June 2006), with appropriate action taken by DFAS.

7.  In view of the foregoing, the records should be corrected as recommended below.







BOARD VOTE:

___x___  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 the RCSBP annuity as the spouse beneficiary on 12 June 2006, the day following her husband's death with appropriate action being taken by DFAS.



      ___________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)                                         AR20140013131



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ABCMR Record of Proceedings (cont)                                         AR20140013131



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