IN THE CASE OF:    

		BOARD DATE:  25 August 2015	  

		DOCKET NUMBER:  AR20150001874 


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 payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM). 

2.  The applicant states:

* it was the intent of her husband that she receive an annuity based on his election on the DD Form 1883 (SBP Election Certificate) he completed in November 1989 
* the FSM died on 25 May 2005 and she was under the impression that she would need to wait until she was 65, just like Medicare and social security, to apply for the SBP
* she did not know nor was she informed by the Alabama Army National Guard (ALARNG) that she should have applied for the annuity at the time of his death 
* she received a letter from the U.S. Army Human Resources Command (HRC) advising her of the 6-year statute of limitations 
* she ultimately contacted someone from the ALARNG who explained the statute of limitations 

3.  The applicant provides:

* DD Form 1883
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Retired Reserve orders 
* retirement points sheets
* death certificate
* 20-Year Letter
* letter from HRC

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 21 February 1946.  He would have turned 60 years of age on 21 February 2006.  He and the applicant, Elsie, were married on 18 February 1966.

2.  Having had prior service, the FSM enlisted in the ALARNG on 8 October 1977 and he held military occupational specialty 76P (Materiel Control and Accounting Specialist).  He served through multiple reenlistments or extensions in the ALARNG and attained the rank/grade of sergeant first class (SFC)/E-7.  

3.  On 20 October 1989, the State Military Department, ALARNG, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This memorandum notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

4.  On 12 November 1989 the FSM completed a DD Form 1883.  He indicated that he was married to the applicant and they had three dependent children.  He elected to participate in the Reserve Component SBP (RCSBP), spouse and children coverage, under Option C (Immediate Coverage), based on the full amount of retired pay.  He and his spouse Elsie, the applicant, authenticated this form by placing their signatures in the appropriate blocks. 

5.  On 1 December 1992, the Office of the Adjutant General, ALARNG, published Orders 336-107 reassigning the FSM to the Retired Reserve in the rank and grade of SFC/E-7 effective 9 November 1992.

6.  He was honorably discharged from the ALARNG on 9 November 1992 and he was transferred to the Retired Reserve.  His NGB Form 22 shows he completed 23 years, 7 months, and 16 days of total service for pay. 

7.  On 20 March 2004, the FSM submitted a DD Form 108 (Application for Retired Pay benefits) to receive retired pay on 21 February 2006, his 60th birthdate.  With his application, he also completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to the applicant and elected spouse SBP coverage based on the threshold amount in effect on the date of retirement.  

8.  On 11 October 2005, HRC published Orders P10-5901609 placing the FSM on the Retired List in his retired grade of SFC effective 21 February 2006, his 60th birthday. 

9.  Unknown to HRC, the FSM had died a few months earlier on 25 May 2005.  His death certificate shows he was married to the applicant at the time of death. 

10.  In early December 2014 the applicant contacted HRC in relation to the SBP annuity.  On 22 December 2014, the HRC responded by letter indicating that her request for SBP payment was denied because the statute of limitations required her claim to be submitted within 6 years of her husband's death.    

11.  Public Law 95-397, the Reserve Component SBP (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: 

* Option A:  elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option 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

12.  Title 31 U. S. Code (USC), section 3702, 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, USC, 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 she is entitled to payment of an SBP annuity retroactive to 2005 based on the death of her husband, a FSM.  

2.  The evidence of record shows that upon receiving his 20-year letter, the FSM submitted an SBP Election Certificate on 12 November 1989, in which he elected full immediate spouse and children RCSBP coverage.  He was transferred to the Retired Reserve on 9 November 1992 and he died on 25 May 2005, a few months before reaching age 60.

3.  The applicant did not request an annuity right away because she thought she had to wait until she reached age 65.  The earliest she contacted the Army was in 2014, well beyond the 6-year statute of limitations.   When she did so, HRC officials stated an annuity could not be started due to the barring act.  

4.  Nevertheless, the FSM's intent was clearly to provide an annuity for her.  That is why he completed the DD Form 1883 in November 1989.  She should not be penalized for her lack of knowledge of the administrative process for applying for benefits within this program or the statutory timelines associated with it.  Furthermore, the Army has available all the forms necessary establishing the validity of her claim.  

5.  Therefore, in the interest of equity and justice, the FSM's records should be corrected to show she submitted a request for his RCSBP annuity immediately after his death and she should be paid the annuity retroactive to the first day following the death of her husband in May 2005.

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 be corrected by:

* showing the applicant notified the Defense Finance and Accounting Service (DFAS) of her husband's death shortly after he died
* showing the applicant made a timely request for the RCSBP annuity and her request was received and processed by the appropriate office in a timely manner
* DFAS paying her the RCSBP/SBP annuity as a result of this correction, retroactive to the day following the FSM's death on 25 May 2005



      _______ _  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)                                         AR20150001874



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ABCMR Record of Proceedings (cont)                                         AR20150001874



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