IN THE CASE OF: BOARD DATE: 11 February 2014 DOCKET NUMBER: AR20130009163 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, in effect, that she be paid a Survivor Benefit Plan (SBP) annuity based on the Reserve Component SBP (RCSBP) election of her deceased spouse, a former service member (FSM). 2. The applicant states, in effect, that she was unaware she was entitled to an SBP annuity until she received a letter from the Secretary of Defense notifying her that she might be eligible for TRICARE insurance. Her husband did not inform her of her eligibility for such benefits and neither did the Army when he passed away. She submitted all of the required documents to the U.S. Army Human Resources Command (HRC) and was informed that due to the statute of limitations she could not receive the pay unless a correction was made to the FSM’s records. 3. The applicant provides copies of a letter from HRC, a DD Form 2656-7 (Verification for Survivor Annuity), marriage license, Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), the FSM’s SBP Election Certificate, Direct Deposit Sign-Up Form, Form W-4P, Retirement Points Statement, and the FSM’s death certificate. CONSIDERATION OF EVIDENCE: 1. The FSM served in the Regular Army from 1969 to 1972 and was honorably released from active duty and was transferred to the U.S. Army Reserve (USAR) to complete his statutory service obligation. 2. On 18 June 1984, he enlisted in the Kentucky Army National Guard (KYARNG) and continued to serve through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 October 1994. 3. On 24 July 2002, he was issued his 20-Year Letter. On 18 August 2002, he submitted a DD Form 1883 in which he elected full spouse coverage under option C, for immediate coverage. The applicant also signed the election form. 4. On 31 May 2004, he was honorably discharged from the KYARNG and he was transferred to the USAR Control Group (Reinforcement). 5. The FSM passed away on 31 March 2005 at the age of 52. 6. In February 2013, the applicant applied for an RCSBP annuity 7. On 22 March 2013, HRC notified the applicant that her request for an SBP annuity was denied because she had exceeded the statute of limitations which required that she file a claim within 6 years. She was advised to apply to this Board. 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, U. S. Code, section 3702 prohibits the payment of a claim against the Government unless the claim has been received within 6 years after the claim accrues. DISCUSSION AND CONCLUSIONS: 1. Although the applicant signed the RCSBP election form, the Board accepts the applicant’s contention that she was not properly counseled regarding the RCSBP. The FSM had only been discharged from the KYARNG for about 10 months when he passed away and it appears that the applicant did not receive the assistance necessary to ensure that she was made aware of her entitlements at the time. A reasonable person would not wait nearly 8 years to apply for an annuity to which she was entitled had she been properly informed. 2. One of the reasons behind the Barring Act is to relieve the Government of excessive paperwork and prevent stale, baseless claims which the government cannot substantiate. Documents verifying the applicant’s entitlements are readily available. 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 an RCSBP annuity, on 1 April 2005, the day after her husband’s death and that she be paid the annuity retroactive to that date. 2. The Board wants the applicant and all others to know that the sacrifices made by her late husband in service to the United States are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms. _______ _ 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) AR20130009163 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130009163 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1