IN THE CASE OF:  

		BOARD DATE:  30 April 2015

		DOCKET NUMBER:  AR20140015047 


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 correction of her deceased husband's record to show she made a timely application for an annuity under the Survivor Benefit Plan (SBP).  She requests the SBP annuity be paid to her retroactive to 1995 when the FSM died.  She also requests her husband's retirement benefits and pay.

2.  The applicant states that these issues were not among the things she was thinking about after her husband's unexpected death on 6 February 1995.  She did not go through his paperwork until she sold their house in August 2007, and then everything went into storage.  Only through conversations with retired military friends was she made aware that she could possibly apply for her husband's benefits.

3.  The applicant provides:

* Letters, dated 20 March and 16 July 2014, from the U. S. Army Human Resources Command (HRC)
* DA Form 2656-7 (Verification of Survivor Benefit Annuity), dated 14 April 2014
* FSM's death certificate
* her social security card
* Certificate of Marriage Registration
* Certificate of Marriage
* Direct Deposit Sign-Up Form
* W-4P (Withholding Certificate for Pension or Annuity Payments)
* orders showing the FSM's discharge from the Army National Guard (ARNG) and reassignment to a U.S. Army Reserve (USAR) unit
* ARNG Annual Retirement Points Statement
* FSM's Armed Forces Identification Card
* New York ARNG (NYARNG) letter, Subject:  Notification of Eligibility for Retired Pay at Age 60, dated 2 November 1989 
* DD Form 1883 (SBP Election Certificate), dated 4 December 1989
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 26 July 1991
* Servicemen's Group Life Insurance Election forms, dated 9 July 1989, 
15 July 1990, and 19 January 1991

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 14 July 1941 and would have reached 60 years of age on 14 July 2001.  Following service in the U. S. Navy Reserve, the FSM enlisted in the NYARNG on 16 September 1972 and served until 1 September 1991 when he was transferred to the USAR Control Group (Retired). 

2.  On 2 November 1989, the FSM was notified of his eligibility to receive retired pay at age 60.  On 4 December 1989, the FSM completed a DD Form 1883 in which he made an election to participate in the Reserve Component SBP (RCSBP) and elected immediate full coverage for his spouse and children.

3.  On 6 February 1995, the FSM died at age 53.

4.  A 20 March 2014 HRC Reserve Components Retirements letter expresses condolences to the applicant upon the death of her husband.  The letter provides the applicant with instructions for completion of the Verification for a Survivor Annuity and lists the documents the applicant must submit.  

5.  In a 16 July 2014 letter, the Chief, Retired Pay Branch, HRC, denied the applicant's claim for payment of the SBP annuity citing the statute of limitations in Title 31, U.S. Code (USC), which requires a claim to be submitted within 6 years of accrual.  If it is not submitted within the required 6 years, the claim is barred and the Reserve Component Retirements Branch does not have jurisdiction to consider it.  The FSM died on 6 February 1995.  The statute of limitations went into effect 6 February 2001.  Therefore, the applicant's request for payment was denied.  She was advised she could apply to this Board to review her case and appropriate instructions were provided.      



6.  The applicant provides copies of:

	a.  marriage certificate from the City of New York, showing the applicant and the FSM were married on 14 May 1971;

	b.  FSM's death certificate showing he was married at the time of death;

	c.  FSM's ARNG Current Annual Statement, dated 4 October 1990, showing he had 21 years of creditable service for retired pay.

7.  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.

8.  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 death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

9.  Title 31, USC, section 3702, also known as the Barring Act, prohibits the payment of a claim against the U.S. 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, 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's request for correction of her deceased husband's record to enable her to collect an RCSBP annuity has been carefully considered and is determined to have merit.  The evidence clearly indicates the FSM elected to provide an immediate RCSBP annuity for his spouse and eligible children in the event of his death.
2.  The evidence in this case confirms the FSM's RCSBP election.  The FSM's marriage to the applicant is not in question.  There is no disadvantage to the Government in paying a clearly established claim.

3.  It is reasonable to conclude the applicant was neither aware that her RCSBP entitlement began upon her husband's death rather than on his 60th birthday nor aware of the legislation requiring her to make application for the RCSBP annuity within 6 years of the FSM's death.  Had she known, she would have made application immediately.  To deny her the SBP annuity now would be an injustice.

4.  Therefore, it would be appropriate to show the applicant submitted a DD Form 2656-7 on 7 February 1995 (the day after the FSM's death), thereby entitling her to the RCSBP annuity.

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 by corrected by:

	a.  showing the applicant completed and returned a DD Form 2656-7 and related documents to the proper office on 7 February 1995 and that they were received and processed by the proper office in a timely manner; and

	b.  paying the applicant an annuity retroactive to 7 February 1995, the day after the FSM's death.



      ______________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.
SAMR-RBR	8 May 2015

MEMORANDUM FOR RECORD

SUBJECT:  AR20140015047 Record of Proceeding (ROP) - Administrative Error

On Thursday, 7 May 2015, Team 2 identified an administrative error in subject as above Record of Proceeding (ROP) signature page.  Two numbers in the case reference number (header) were transposed.	I crossed through the wrong number and inserted the correct number.  Additionally, I initialed the change and will add this memorandum for record to the official file.

Deputy Director, Army Board for Correction of Military Records



ABCMR Record of Proceedings (cont)                                         AR20090016057





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ABCMR Record of Proceedings (cont)                                         AR20140015047



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