BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140014671 


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 spouse of a deceased former service member (FSM), requests that her husband's records be corrected to show she filed a timely application for receipt of his Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states that following the death of her husband in April 2006 she inquired into her eligibility for the RCSBP annuity at several military installations. Over the course of 8 years she was unsuccessful in getting a definitive answer.  Throughout the period she was inquiring into the matter she was never notified there was a time limit for filing a claim for the RCSBP annuity.  In April 2014, she learned from Mr. T____ B____, Reserve Component Retirements (RCR) Branch, that she was eligible for the RCSBP monthly annuity.

3.  The applicant provides copies of –

* their marriage certificate
* the FSM's RCSBP documents
* the FSM's Certificate of Death
* correspondence from the U.S. Army Human Resources Command (HRC) and her application for survivor annuity


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 in April 1949.  He was inducted into the U.S. Army on 
17 December 1970, honorably released from active duty on 7 December 1972, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.

3.  The applicant (Marie E.) and FSM married on 8 August 1974.

4.  After a break in military service, on 9 December 1981, the FSM enlisted in the USAR.

5.  On 28 July 1995, the Chief, Retired Activities Division, USAR Personnel Center, St. Louis, MO, notified the FSM that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

6.  A DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) shows the FSM indicated he married Marie E. (the applicant) on 8 August 1974 and that he had two dependent children.  He elected spouse only coverage based on the full amount of retired pay with RCSBP Option C (Immediate coverage).  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new SBP?), shows the FSM placed an "X" in the "Yes" block.  The DD Form 1883 also shows the FSM, the applicant, and a witness placed their signatures on the document on 21 August 1996.

7.  In support of the application the applicant provides the following documents.

	a.  State of Ohio, Tolna County, Tamasi District, Record of Marriage, that shows the applicant and FSM were married on 8 August 1974.

	b.  Ohio Department of Health, Vital Statistics, Certificate of Death, issued on 20 April 2006, that shows the FSM died on 16 April 2006.  It also shows the FSM was married at the time of his death and the applicant's name is listed as the informant on the certificate.
	
	c.  DD Form 2656-7 (Verification for Survivor Annuity), with enclosures, that shows the applicant verified information relevant to her claim for the FSM's SBP annuity.  The applicant signed the DD Form 2656-7 on 5 May 2014.  (The instructions show that the form is to be returned to the Defense Finance and Accounting Service (DFAS)).

   d.  HRC, Fort Knox, KY, memorandum, dated 7 August 2014, that shows the Chief, RCR Branch, notified the applicant that, effective 2 July 1975, the Statute of Limitations (Title 31, U.S. Code, section 3702), requires that a claim be submitted within 6 years of accrual.  If the claim is not submitted within the required 6 years, the claim is barred and the RCR Branch does not have jurisdiction to consider it.  She noted the FSM died on 16 April 2006 and the statute of limitations for the applicant filing her claim went into effect on 16 April 2012.  Therefore, her request for SBP annuity was denied.  She was advised that she could apply to the ABCMR for review of her case.

8.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies 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 the service member's death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

10.  Title 31, U.S. Code, section 3702 (Authority to settle claims), 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 contends that the records of the FSM should be corrected to show she filed a timely application for the receipt of his RCSBP annuity.

2.  Records show, on 28 July 1995, the FSM was notified he had completed 
20 years of credible service for retired pay at age 60.

3.  On 21 August 1996, the FSM elected RCSBP with spouse only (immediate coverage) full base amount.

4.  The FSM died on 16 April 2006.  Thus, the applicant was entitled to the FSM's RCSBP annuity effective 17 April 2006.

5.  The evidence of record shows the applicant did not submit the documentation required in order to start the annuity process until May 2014.

6.  Despite the fact that the applicant failed to take timely action to start the SBP annuity, the applicant's request merits favorable consideration based on the fact that the FSM had submitted a timely election for RCSBP coverage.

7.  Therefore, the FSM's records should be corrected to show the applicant made a timely request for the SBP annuity on 17 April 2006.

8.  At least one of the reasons behind the barring statute was not of major importance in this case.  The applicable records were readily accessible and the applicant's case was not difficult to prove.

9.  In view of the foregoing and as a matter of equity, the FSM's records should be corrected to show the applicant timely applied for the SBP, it was timely received and processed by the appropriate office, and to pay her the annuity retroactive to the day after the FSM's death.


BOARD VOTE:

__X______  __X______  _X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 the RCSBP annuity in a timely manner and that she be paid the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 17 April 2006.

2.  The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her eligibility for Army benefits.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.




      _______ _ 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)                                         AR20140014671



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ABCMR Record of Proceedings (cont)                                         AR20140014671



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