IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150009408 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X__ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150009408 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150009408 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, entitlement to Survivor Benefit Plan (SBP) benefits based on the death of her husband, a former service member (FSM). 2. The applicant states the FSM's Reserve Component SBP (RCSBP) election indicated the coverage was for children only. As his spouse, she was not aware of this election and she did not sign the election to concur with the omission of spouse coverage. 3. The applicant provides her marriage certificate and FSM's death certificate. 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’s records show he was born on 18 December 1945. Having had prior active service, the FSM enlisted in the Connecticut Army National Guard (CTARNG) on 17 June 1974. 3. He served through multiple extensions in the ARNG in a variety of stateside assignments and he attained the rank/grade of sergeant first class/E-7. 4. On 24 April 1982, he and Kathleen, the applicant, were married. 5. On 28 September 1994, the Military Department, CTARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 6. On 3 December 1994, he completed a DD Form 1883 (SBP election Certificate). He indicated that he was married to Kathleen and they had 2 children, born in 1979 and 1982 respectively. Neither is listed as incapable of self-support because of disability. He elected "children only" RCSBP coverage, Option C (immediate coverage), based on the full amount. He and his spouse, the applicant, authenticated this form with their signatures. 7. On 28 April 1997, the FSM was issued orders transferring him to the Retired Reserve, effective 30 April 1997. 8. He was honorably separated from the ARNG on 30 April 1997 and transferred to the Retired Reserve. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 22 years, 10 months, and 14 days of ARNG service. 9. On 26 October 2000, the FSM died at the age of 54. His death certificate shows he was married to the applicant at the time of death. REFERENCES: 1. 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: * 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 2. Once a member elects either option B or option 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 the RCSBP - the options automatically roll 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. 3. Title 31, U. S. Code (USC), section 3702, also known as the Barring Act, 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: 1. The applicant's contention that she should receive SBP benefits based on the death of her husband, a FSM, was carefully considered. However, there is insufficient evidence to support this claim. 2. The evidence of record shows the applicant submitted a DD Form 1883 within 90 days of receiving his 20-year letter. He elected "children only" RCSBP coverage, Option C, based on the full amount. By law, his spouse was required to authenticate this form. She did so. She concurred with his election. 3. The FSM's children were born in 1979 and 1982 respectively. Neither is listed as incapable of self-support because of disability incurred before age 18. Both children aged off by the time he died and were no longer eligible beneficiaries, unless attending post-secondary school, full time, which would have extended their eligibility. There is no evidence of an error or an injustice. The FSM made an election and his spouse concurred with it. She was not an eligible beneficiary when he died in 2000 and she remains ineligible today. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009408 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009408 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2