IN THE CASE OF:	

		BOARD DATE:	    13 October 2015

		DOCKET NUMBER:  AR20150001716 


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, in effect, payment of her deceased husband's Survivor Benefit Plan (SBP) annuity, and a waiver of the 6-year statute of limitations.

2.  The applicant states she would like to be permitted to collect the FSM's SBP annuity, even though the 6-year statute of limitations referenced by the U.S. Army Human Resources Command (HRC) has lapsed.  

	a.  The FSM was divorced from his previous spouse in 2000 and she married the FSM on 19 July 2003.  The FSM died on 5 May 2006.

	b.  When the FSM died she spoke to a Veterans Service Officer (VSO) from the Veterans of Foreign Wars (VFW) in Grasonville, MD.  The VSO told her to wait until her husband would have been 60 years old before requesting his retirement.  She was grieving the loss of her husband and took the VSO's word and assurance as gospel.  

	c.  She applied to HRC and requested the FSM's retirement pay in 2014 and HRC denied her request because the 6-year statute of limitations had lapsed.  

3.  The applicant provides:

* two letters from the Army Review Boards Agency, Case Management Division, dated 23 September 2014 and 19 December 2014

* a self-authored statement, dated 20 October 2014
* the FSM's Notice of Eligibility for Retired Pay at age 60 (20-Year Letter), dated 20 October 1998
* Decree of Absolute Divorce, dated 23 March 2000
* Marriage Certification, dated 19 July 2003
* the FSM's Certificate of Death, dated 8 May 2006
* DD Form 2656-7 (Verification of Survivor Annuity), dated 27 May 2014
* a letter from HRC, Reserve Components Retirements – Retired Pay Branch, dated 18 July 2014

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 XX March 1954 and enlisted in the Regular Army on 25 November 1974.

3.  The FSM was honorably discharged from the Army on 4 September 1992.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 17 years, 9 months, and 10 days of net active service and he was credited with 1 month and 24 days of prior inactive service.  

4.  The FSM enlisted in the U.S. Army Reserve on 5 September 1992.

5.  The applicant provided the FSM's 20-Year Letter, dated 20 October 1998.  This letter notified the FSM that, having completed the required years of service, he would be eligible for retired pay upon application at the age of 60 in accordance with provisions of Title 10, U.S. Code, Chapter 67.  

6.  The FSM's records did not contain orders placing him in the Retired Reserve; however, his record did contain a DD Form 1883 (SBP Election Certificate), dated 20 January 1999,  Therefore, it appears he was transferred to the Retired Reserve sometime near this date.  This form shows the FSM was married, had children, and elected to provide an annuity to his children only, based on the full amount of his retired pay under option C (Immediate Coverage).  

	a.  He had 3 natural children listed:

* son, born on 15 June 1980
* son, born on 22 June 1986
* daughter, born on 22 September 1987

	b.  This form stated:  "Important: The decision you make with respect to participation in the Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision very carefully."

7.  The applicant provided the FSM's divorce decree showing he was awarded an absolute divorce from his previous spouse on 23 March 2000.  The divorce decree references a separation agreement that was not provided and is not available for review.  However, the final decree does indicate that the separation agreement directed the distribution of marital property, child support, and other financial and monetary issues.  

8.  The applicant provided a copy of her marriage certificate that shows she and the FSM were married on 19 July 2003.  

9.  The applicant provided a copy of the FSM's death certificate, which shows the FSM died on 5 May 2006.  The FSM would have attained 60 years of age on XX March 2014.

10.  The applicant provided a DD Form 2656-7, dated 27 May 2014.  This form shows she requested Reserve Component SBP for spouse only.

11.  The applicant provided a letter she received from HRC, Reserve Components Retirements - Retired Pay Branch, dated 18 July 2014, which stated:

This is in reference to your eligibility for Survivor Benefit annuity based on the military service of the FSM].  Effective July 2, 1975, the Statute of Limitations (Title 31 [USC], Section 3701) requires that a claim be submitted within 6 years of accrual.  If it is not submitted within the required six years, the claim is barred and the Reserve Component 
Retirements (RCR) Branch does not have the jurisdiction to consider… [this request].  …[The FSM] died on May 5, 2006.  The statute of limitations went into effect on May 5, 2012…  Therefore, your request for payment must be denied and your application… returned.
12.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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 not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

13.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  Extensive publicity was given this SBP Open Season on Department of Defense websites, Army Echoes and other Army publications, and by military veteran organizations. An eligible retiree had to live 2 years for an Open Season election to be valid.

14.  Army Regulation 135-180 (Retirement for Non-Regular Service) implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

DISCUSSION AND CONCLUSIONS:

1.  When a Reserve component Soldier has received a 20-Year Letter indicating they have completed enough qualifying service to retire upon application at the age of 60, they also receive a DD Form 1883.

2.  Since Reserve Soldiers are not eligible to receive their retired pay until after they have made their application for retirement at the age of 60, when they complete the DD Form 1883, they have the option to elect to participate in the RCSBP.  The RCSBP allows a Reserve Soldier to provide a partial or full annuity (depending on the election they make) if they should die before the age of 60.

	a.  If the Reserve component Soldier lives past the age of 60 the RCSBP converts to regular SBP and they are then required to pay a portion of their monthly retirement check every month towards RCSBP and SBP premiums.

	b.  If they die before the age of 60 their annuitant receives the indicated annuity until they are no longer considered eligible.  For example, if the annuitant is a child they would receive the payments until they reached an age in which they are no longer considered eligible to receive the payments.  Children are considered eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school, or disabled.

3.  In this case, when the FSM elected to participate in the RCSBP, he elected to provide an SBP annuity for his children only.  This election was irrevocable.  This means he elected his three children as his annuitants, and he elected to provide them with an annuity if he should die before the age of 60.  At the time of his election his children were 18, 13, and 11.  Further, because he had a spouse, this also closed the spouse category absent an open season enrollment.  As such, at least two of his children were clearly eligible to receive payment of his RCSBP at the time of his death. 

4.  The applicant waited until after the FSM's 60th birthday to apply for SBP and was denied because it had been more than 6 years from his death.  HRC declined to process her request based only on this aspect.  It is unclear whether HRC informed her of the FSM's RCSBP election or any other issues involving her eligibility.

5.  Nevertheless, the true issue here is that the FSM made an irrevocable election in favor of his children.  Further, there is no evidence that the FSM ever added the applicant to his coverage by electing spouse coverage, nor would such an election have been effective because he did not survive for 2 years beyond the open season.  









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      __________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)                                         AR20150001716



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001716



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1