IN THE CASE OF:

		BOARD DATE:  20 May 2021

		DOCKET NUMBER:  AR20200003101


APPLICANT REQUESTS:  the applicant the spouse of the Former Service Member 
(FSM) requests the Survivors Benefit Plan (SBP) annuity.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Orders Number P-09-305XX, dated 15 September 19XX
*	SF 1174 (Claim for Unpaid Compensation of Deceased Member of the 
Uniformed Services), dated 11 September 2010
*	FSM's Certificate of Death

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code (USC), section 1552(b); however, the Army Board for Correction of Military 
Records (ABCMR) conducted a substantive review of this case and determined it is in 
the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant, the spouse of the FSM, states she believes she is entitled to receive 
SBP annuity from the disposable military retired retainer pay of the FSM. She is 
requesting a waiver of the six-year barring statute. She submitted a DD Form 2656-7 
(Verification for Survivor Annuity) to the Defense Finance and Accounting Service 
(DFAS) on 10 November 2010. She did not call to confirm the form had been received. 
Shortly thereafter, she became ill and underwent cancer treatment. Over time, she tried 
to contact DFAS, but was unable to get the assistance needed to start getting the 
benefits. She contends her husband wanted to provide for her with the SBP. She never 
waived her right to the benefit and would like to rectify this situation. 

3.  The FSM was a member of the U.S. Army Reserve (USAR). DARP Form 249-2 
(Chronological Statement of Retirement Points), dated 24 July 1996, shows he had 22 
qualifying years of service for retirement. 

4.  On 27 February 1997, the FSM completed a DD Form 2656 (Data for Payment of 
Retired Personnel) wherein he elected coverage for both his "Spouse and children." 
The FSM elected coverage to be based on full gross retired pay. Section VIII (Survivor 
Benefit Spousal Concurrence) shows the applicant, FSM and a witness endorsed the 
document. This form shows the FSM and applicant were married on 11 July 1958

5.  On 22 September 1997, by memorandum, the applicant was informed his application 
for retired pay under Title 10, United States Code, section 12731 was approved.

6.  The applicant provides:

	a.  Orders Number P-09-305XXX, issued by the U.S. Army Reserve Personnel 
Center, St. Louis, MO, showing the FSM was retied and placed on the retired list, 
effective 18 September 19XX.

	b.  SF 1174 showing the applicant applied for unpaid compensation due to the 
FSM's death on 15 September 2010.

	c.  Death certificate showing the FSM died on 15 September 2010 and the applciant 
was the informant.

7.  Case Management Division received a response from the DFAS wherein a DFAS 
official confirmed the applicant was the beneficiary of the FSM's SBP. However, she 
had not sent in her packet for payment.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was warranted.  The Board carefully considered the applicant's request, the former 
service members record of service, documents submitted in support of the petition and 
executed a comprehensive and standard review based on public law, policy and 
regulation.  Upon review of the applicants petition and available military records for the 
FSM, the Board determined the FSM paid the premiums in order for his spouse to be 
taken care of after his death. The Board determined the record should be corrected to 
show the FSM’s spouse applied for SBP payments after the death of the FSM and it 
was approved in a timely manner to be in accordance with public law. Based on this the 
Board determined relief was warranted and granted relief.

?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

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 spouse of the 
former service member (FSM) applied for SBP payment in October 2010 after the FSM 
died and the spouse’s packet was received and processed in a timely manner by the 
appropriate DFAS office.


		  
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.


ADMINISTRATIVE NOTE(S): N/A


REFERENCES:

1.  Title 10, USC, 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 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.

2.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), 
enacted 30 September 1978, provided a way for those who 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, and (C) elect that a beneficiary receive an annuity immediately 
upon their death if before age 60.  Once a member elects either option B or C in any 
category of coverage, that election is irrevocable.  Option B and C participants do not 
make a new Survivor Benefit Plan (SBP) election at age 60.  They cannot cancel SBP 
participation or change options they had in RCSBP and RCSBP coverage automatically 
converts to SBP coverage upon retirement.

3.  Title 31, USC, section 3702, is the 6-year barring statute for payment of claims by 
the government. In essence, if an individual brings a claim against the government for 
monetary relief, the barring statute says that the government is only obligated to pay the 
individual 6 years from the date of approval of the claim. Attacks to the barring statute 
have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride 
versus the United States, the court held that the Board for Correction of Military Records 
(BCMR) is not bound by the barring act, that the BCMR decision creates a new 
entitlement to payment and the 6 years starts running over again, and that payment is 
automatic and not discretionary when a BCMR decision creates an entitlement.


//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20200003101


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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