IN THE CASE OF:	  

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150000043 


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 correction of her husband's records to show she is entitled to his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states her husband died in 2003.  She submitted an application for the SBP annuity; however, it was mistakenly rejected.  She was given misleading information and did not fully understand the underlying issues, so she did not pursue the matter.  She provides a timeline of events and her efforts.

   a.  On 22 August 2003, the applicant contacted the Defense Finance and Accounting Service (DFAS) for verification of her SBP application.  She was informed the annuitant could receive Dependency and Indemnity Compensation or SBP, but not both.

   b.  In the 2007-2008 timeframe, she completed applications for SBP with supporting documents on two occasions and submitted them to DFAS.  She responded to correspondence for additional documentation and was informed Social Security Indemnity Allowance (SSIA) would start in October 2008.  However, she did not receive SSIA or SBP.

   c.  In 2009, she learned of the 6-year statute of limitations for filing for SBP.

   d.  In 2014, she discussed her situation with the FSM's cousin (a former Army warrant officer) who informed her that he too had experienced numerous errors in dealing with the U.S. Army Human Resources Command (HRC).  She continued to seek assistance from military service organization representatives; however, her eligibility for the SBP benefit could not be verified.

   e.  In August 2014, an HRC representative discovered that the error being made was confusion of the records of the FSM with those of his cousin (a former warrant officer who happens to have the same name).  At that time, she submitted another SBP application.

   f.  In October 2014, HRC advised her that the application was denied due to the statute of limitations.

3.  The applicant provides copies of a timeline of events; her marriage certificate; and the FSM's death certificate, "Twenty Year" letter, SBP election certificate, and retirement orders.

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 18 August 1947.  He had honorable enlisted service from 8 February 1966 through 7 February 1972.  After a break in military service, he was appointed as a commissioned officer in the Army National Guard of the United States on 19 August 1977.

3.  The FSM transferred to the U.S. Army Reserve (USAR) on 28 February 1983. He attained the rank of lieutenant colonel/pay grade O-5 on 29 May 1998.

4.  USAR Personnel Command, St. Louis, MO, Orders C-04-310609, dated 
11 April 2003, released the FSM from the USAR Control Group (Reinforcement) and assigned him to the USAR Control Group (Retired Reserve), effective 1 May 2003.

5.  A DD Form 1300 (Report of Casualty), dated 24 August 2003, shows the FSM died on 19 June 2003

6.  A review of the FSM's records failed to reveal a copy of a DD Form 1883 (SBP Election Certificate).

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

	a.  City of Yonkers, New York, Office of City Clerk, Certificate of Marriage Registration, filed on 14 October 1970, that shows the FSM and the applicant married on 11 October 1970.

   b.  The City of New York, Vital Records Certificate, Death Transcript, Certificate of Death, filed on 20 June 2003, that shows the FSM died on 19 June 2003.  It also shows the FSM was married to the applicant at the time of his death.

   c.  Chief, Retired Activities Division, USAR Personnel Center, St. Louis, MO, letter (front page, only), dated 27 October 1995, that shows the FSM was notified that his eligibility for retired pay had been established upon attaining age 60.

   d.  A DD Form 1883 that shows the FSM indicated he was married to the applicant on 11 October 1970 and had two dependent children.  He elected spouse-only coverage based on the full amount of retired pay with Reserve Component SBP Option B (Age 60).  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the FSM placed a checkmark in the "Yes" block.  The DD Form 1883 also shows the FSM and a witness, apparently a member of the FSM's unit, placed their signatures on the document on 24 May 1996.

   e.   An ARPC Form 289 (Postcard in Response to Inquiry), dated 
19 June 1996, from the USAR Personnel Center and addressed to the FSM, subject:  Survivor Benefits, that shows "Your DD Form 1883 has been received."

   f.  HRC, Fort Knox, KY, memorandum, dated 16 October 2014, from the Chief, Reserve Component Retirements Branch, that notified the applicant that the statute of limitations for her SBP filing went into effect on 19 June 2009.  She was advised that she could apply to the ABCMR.


8.  In connection with the processing of this case, DFAS was asked to verify information relevant to the FSM's SBP election, coverage, and participation.  A DFAS official indicated they did not have any information on file pertaining to the FSM.

9.  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.

10.  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; and 
(C) elect that a beneficiary receive an annuity immediately upon the service member's 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 wait until he/she applies for retired pay and elect to participate in the standard SBP.  Failure to elect an option resulted in the default election of Option A.  

11.  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 27 October 1995, the FSM was notified he had completed 
20 years of credible service for retired pay at age 60.

3.  On 24 May 1996, the FSM elected RCSBP spouse-only coverage (at age 60) based on the full amount of his retired pay.  The evidence of record shows the application was received at the USAR Personnel Center on 19 June 1996.  Although untimely, it appears his application was accepted as valid.

4.  The FSM died on 19 June 2003.  Thus, the applicant was entitled to the FSM's RCSBP annuity effective 18 August 2007, the date he would have turned age 60.

5.  The evidence of record indicates the applicant submitted the documentation required in order to start the annuity process.  However, due to administrative error and/or other reasons, her application was not processed.

6.  The applicant's request merits favorable consideration based on the fact that the FSM had submitted an election for RCSBP coverage, was never informed it was untimely, and in reliance on its validity failed to take advantage of other opportunities that may have existed to ensure applicant's financial security.

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

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 the FSM would have turned age 60.

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 18 August 2007; the date the FSM would have turned age 60.

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)                                         AR20150000043



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ABCMR Record of Proceedings (cont)                                         AR20150000043



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