BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150008113 BOARD VOTE: __x_______ _x______ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150008113 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: a. showing the applicant applied for the Survivor Benefit Plan (SBP) annuity on 15 March 2004 and returned the application to the appropriate office where it was processed in a timely manner and b. paying the applicant the SBP annuity retroactive to 15 March 2004, the day after the FSM's death, less any required premiums as determined by the Defense Finance and Accounting Service. __________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. BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150008113 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, the widow of a deceased former service member (FSM), requests, in effect, correction of the FSM's military records to show she applied for the Reserve Component Survivor Benefit Plan (RCSBP) annuity in a timely manner. 2. The applicant states: a. Her husband passed away on 14 March 2004 at age 45. At the time of his death, he was not eligible for military retired pay. b. In December 2008, she called the military to inquire about survivor benefits and was told she would be eligible when her deceased husband would have turned age 60 (6 September 2018). c. She understands there is an entry in her record from December 2008 that has since been deleted and she believes that would be the details from her telephone call which was well within the 6-year time frame to file her claim. 3. The applicant provides: * letter from the Defense Finance and Accounting Service, dated 20 September 2013 * letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command, dated 25 April 2013 * DD Form 2656-7 (Verification for Survivor Annuity), dated 8 April 2013 * marriage certificate * FSM's death certificate * her social security card * her direct deposit slip * FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 20 April 2000 * FSM's Chronological Statement of Retirement Points, dated 15 April 2013 * DD Form 1883 (SBP Election Certificate) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 was born on 6 September 1958. Having prior enlisted service in the Regular Army, he enlisted in the U.S. Army Reserve on 23 October 1980. He married the applicant on 25 September 1990. 3. On 20 April 2000, the FSM was issued his 20-year letter. 4. The FSM's DD Form 1883, dated 9 July 2000, shows he elected spouse-only coverage, full amount, option C (immediate coverage). 5. The FSM was assigned to the Retired Reserve effective 26 June 2003. 6. The FSM died on 14 March 2004 at age 45. His death certificate shows he was married to the applicant at the time of his death. 7. The applicant provided a letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command, dated 25 April 2013, which states her request for payment of the SBP annuity was denied due to the statute of limitations (i.e., a claim must be filed within 6 years of the date it occurred –14 March 2010 in her case). She was advised of her option to apply to the ABCMR to consider the existence of an error or injustice. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the 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. 2. 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. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. Three options were available: a. elect to decline enrollment and choose at age 60 whether to participate in the SBP, b. elect that a beneficiary receive an annuity if they die before age 60 but delay payment 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. DISCUSSION: 1. The DD Form 1883 clearly shows the FSM elected spouse coverage, full amount, option C (immediate coverage), in 2000. 2. The FSM died on 14 March 2004 at the age of 45. 3. The applicant was entitled to payment of the SBP annuity effective the day after the FSM's death. It is reasonable to presume she would have applied sooner had she not been incorrectly told she would not be eligible for survivor benefits until her deceased husband would have reached age 60. 4. In view of the foregoing evidence, it would be appropriate to correct the FSM's records to show the applicant applied for the SBP annuity and returned the application to the appropriate office in a timely manner. The applicant is advised that the Defense Finance and Accounting Service will deduct any required premiums from the annuity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008113 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2