2.  The applicant requests that she be granted an annuity under the Reserve Component Survivor Benefit Plan (RCSBP) her deceased spouse, a former service member (FSM), elected in 1979.  She states that she just recently found out about the SBP when she requested assistance from the VA.  Spanish is her primary language.

3.  The FSM’s military records show he was born on 4 April 1933.  After serving honorably in the Regular Army for 3 years, he served in the U.S. Army Reserve and the National Guard until his death.

4.  On 5 February 1979, the Army National Guard Bureau sent notification to the FSM that he met the eligibility requirement for receipt of retired pay at age 60.  On 16 September 1979, the FSM elected to participate in the RCSBP, “spouse and children coverage,” option C (immediate coverage).

5.  The FSM died on 26 January 1982 at age 49.

6.  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 (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 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).

7.  In 1997, when the applicant finally learned she was eligible for an annuity from the FSM’s RCSBP, she applied to the Army Reserve Personnel Center for it, only to be told she applied outside the 6-year statute of limitations and so was not entitled to survivor benefits.

8.  In the processing of this case, a staff advisory opinion was obtained from the Headquarters Army Retirement Services Office. The Retirement Services Office noted that, for whatever reason the applicant failed to apply for SBP benefits, there was no government administrative error involving the FSM’s RCSBP election.  However, they recommended that this Board uses its broader scope of authority to correct the FSM’s RCSBP election record to “spouse only, full base, option B.”  This would entitle the applicant to SBP on the anniversary of her husband’s 60th birthday, 4 April 1993, and put her current application within bounds of the six-year statute of limitations.  They noted this was fair and just given that it is likely she was given inadequate casualty assistance counseling regarding her benefits and entitlements.

CONCLUSIONS:  

1.  On 16 September 1979, the FSM made a proper RCSPB election of “spouse and children,” full base amount, option C (immediate coverage).  

2.  When the FSM died on 26 January 1982, at age 49, the applicant either was never informed of her entitlement to an annuity under that election or, because of a language barrier, possibly misunderstood the information provided.

3.  When the applicant learned of her SBP entitlement, it was too late.  She applied after the six-year statute of limitations had expired.

4.  The advisory opinion recommended the FSM’s RCSBP election be changed to “spouse only,” full base amount, option B (coverage at age 60).  This would put her application within bounds of the six-year statute of limitations.

5.  In view of the foregoing, it would be in the interest of justice to correct the records as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by showing that on 16 September 1979, the FSM made a RCSBP election of “spouse only,” option B, full base amount, and returned the election form (DD Form 1883) to ARPERCEN for processing, thereby allowing the applicant to become an eligible annuitant on the anniversary of the FSM’s 60th birthday.

2.  That option B costs be considered in calculating the annuity amount.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

			                                                                    
                           			CHAIRPERSON