IN THE CASE OF: BOARD DATE: 19 August 2021 DOCKET NUMBER: AR20210006702 APPLICANT REQUESTS: in effect, correction of the deceased retired service member's records to show his children are entitled to the Reserve Component (RC) Survivor Benefit Plan (SBP) (RCSBP) annuity based on the death of their father. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Certificate of Birth (child – son), issued 8 November 1991 * Certificate of Birth (child – daughter (applicant)), filed 4 March 1988 * State Superior Court 2 – Decree of Dissolution, filed 22 February 2002 * Certificate of Death, 5 November 2005 * DD Form 220 (Active Duty Report), 21 November 2006 (applicant's document) * National Guard Bureau Form 22 (Report of Separation and Record of Service), 30 January 2008 (applicant's document) * Transcript of Academic Record, 18 January 2018 (applicant's document) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 daughter of the deceased retired service member, states her father passed away on 5 November 2005. At the time of his passing, her mother and father had been divorced since February 2002. She and one of her other brothers (K____) were minors at the time of his death. a. Her mother attempted to obtain survivor benefits for the children; however, she gave up trying after being told that since her parents divorced prior to his passing, she could not help them and it was up to the children to garner benefits. She was only recently informed about the possibility of benefits and after multiple telephone calls and inquiries was finally told that the 6-year statute of limitations since his death had run out and they most likely would come out empty handed. b. She served a short time in the Army, attended college for 2 years, currently works for the Indiana Department of Corrections, and is a single mother of three children. She believes her father's service should be honored and benefits given to his minor children from the time of his death. They were not aware of what to do at the time. She would appreciate the benefits to pay off bills and fix her credit, and she feels she deserves that. Her and her brother's (K____) birth certificates are attached as proof of being the deceased retired service member's children. 3. The deceased retired service member's limited available records contain the following documents: a. The Adjutant General's Office, State of Indiana Military Department, memorandum (Notification of Eligibility for Retired Pay at Age 60) (also known as the 20-year letter), 22 December 1995, notified the service member that having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance with applicable laws. The service member would have reached age 60 in 2009. b. The DD Form 1883 (SBP Election Certificate) shows the service member's date of birth as March 1949. He indicated he was married to his spouse (K____) in 1985 and had three dependent children (son – K____ born in 1986; daughter – K____ born in 1988; and son – K____ born in 1991.) He elected option C (Immediate Coverage) for "Spouse and Children" based on the full amount of his retired pay. Option C states: "I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60." He and his then-spouse signed the form on 10 January 1996. c. The Army Reserve Personnel Command Form 3856 (RC Supplement SBP Election Certificate) shows he checked with an "X" the statement: "I elect to participate in the RC Supplemental SBP (RC_SSBP) for my spouse/former spouse." He also checked with an "X" the level of coverage he desired as "20%." He signed the form on 10 January 1996. d. The memorandum from the Commander, Company B, 738th Support Battalion (Request for Transfer into Retired Reserve), 20 March 1999, requested the service member's transfer to the Retired Reserve effective 1 April 1999. He indicated the service member received his 20-year letter and was eligible for retired pay at age 60. e. Military Department of Indiana Orders 074-016, 16 April 1999, honorably discharged the service member from the Army National Guard and assigned him to the U.S. Army Reserve Control Group (Retired Reserve) in the rank of staff sergeant effective 15 April 1999. Military Department of Indiana Orders 090-016, 10 May 1999, amended his effective date to 3 April 1999. f. His National Guard Bureau Form 22 shows he was honorably discharged and transferred to the USAR Control Group (Retired) effective 3 April 1999. He completed 25 years and 9 days of total service for pay purposes. 4. The applicant provided: a. her birth certificate showing she was born in February 1988 and the birth certificate for her brother (K____) showing he was born in July 1991, each showing the deceased service member as their father; b. the County Superior Court 2 Decree of Dissolution showing the Court dissolved the marriage of the service member and K____ effective 22 February 2002. It further ordered that the service member shall be the owner of his military pension; c. the State Certificate of Death showing the service member passed away on 5 November 2005 at age 56; and d. several of her military documents and her college transcript. 5. The email correspondence from a DFAS pay technician (Reply: ABCMR Assistance), 22 July 2021, notes the DFAS database does not show the deceased service member on the retired rolls or contain any documentation. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board found it probable that an application for RCSBP payments was not made on behalf of the applicant and her brother due to confusion and/or bad advice. The Board determined it would be appropriate to correct the record to show an application for RCSBP payments was made on 6 November 2005 and, as a result of this correction, the eligible beneficiaries should be paid retroactively in accordance with the rules governing the program. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 an application for RCSBP payments was submitted on 6 November 2005. As a result of this correction, eligible beneficiaries should be paid retroactively in accordance with the rules governing the program. 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. REFERENCES: 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 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 92-425, enacted 21 September 1972, established the Survivor Benefit Plan (SBP). The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not be name. Since its creation, it has been subjected to a number of substantial legislative changes. 3. Public Law 95-397, enacted 30 September 1978, established RCSBP. The RCSBP provided a way for RC members who qualified for Non-Regular retirement but were not yet age 60 and eligible to participate in the SBP, 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 the member dies before age 60, but delay payment until the date of the member's 60th birthday * option C – elect that a beneficiary receive an annuity immediately upon the member's death if before age 60 4. Once a member elects either option B or C in any category of coverage, that election becomes 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 convert to SBP coverage. 5. Title 31, U.S. Code, 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 states the Government is only obligated to pay the individual 6 years in arrears 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 Boards for Correction of Military Records (BCMR) is not bound by the barring act. The BCMR decision creates a new entitlement to payment and the 6-year statute begins again. Payment is automatic and not discretionary when a BCMR decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006702 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1