BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150011885 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: 4 August 2016 DOCKET NUMBER: AR20150011885 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: * the former service member's (FSM) DD Form 1883 was accepted within 90 calendar days of his receipt of notification of eligibility for retired pay at age 60 * the FSM timely notified the U.S. Army of his eligibility for Reserve Component Survivor Benefit Plan (SBP) with spouse coverage * the FSM timely applied for retired pay at age 60, effective 1 November 2009 * the applicant timely applied for – * the arrears in the FSM's retired pay, retroactive to 1 November 2009; the effective date of the FSM's eligibility for retired pay * the SBP annuity and that she be paid the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 20 December 2012, the date following the FSM's death ___________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: 4 August 2016 DOCKET NUMBER: AR20150011885 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 correction of her husband's records to show she is entitled to his Survivor Benefit Plan (SBP) annuity. 2. The applicant states the FSM was eligible for the Reserve Component (RC) SBP (RCSBP) based on 20 years of military service. To the best of her knowledge, the FSM did not apply for retired pay because he believed he was not eligible for medical/retirement benefits until age 65. a. The FSM passed away in 2009 at the age of 63. She inquired into the FSM's SBP election and was told she would not receive any military retirement benefits related to the FSM's military service. She then sought assistance from representatives of a veteran's service organization. b. She submitted an application for payment of the SBP annuity and received a letter denying her the SBP annuity. She was informed that the FSM did not turn in his SBP election within the required 90 days from receipt of the letter notifying him of his eligibility for retired pay. Enclosed in the envelope was a copy of the DD Form 1883 (SBP Election Certificate) that the FSM signed on 26 April 1991, electing RCSBP with spouse only coverage. c. The FSM retired in 1994. She questions why he was not told (during the period 1991 to 1994) that his RCSBP election was denied. She requests correction of this injustice. 3. The applicant provides copies of: * a self-authored letter (summarized above) * DD Form 1883 * FSM's death certificate * DD Form 2656-7 (Verification of Survivor Annuity) with enclosures * two U.S. Army Human Resources Command (HRC) letters CONSIDERATION OF EVIDENCE: 1. The FSM was born in October 1949. He had honorable enlisted service in the U.S. Army Reserve (USAR) from 9 February 1970 through 26 July 1994. He attained the rank of sergeant first class/pay grade E-7 on 14 June 1977. 2. USAR Personnel Center, St. Louis, MO, letter, dated 29 September 1990, shows the Chief, Retired Activities Division, notified the FSM that his eligibility for retired pay had been established upon attaining age 60. It also shows he was informed, "[b]y law, you have only 90 calendar days from the date you receive this letter to submit your SBP Election Certificate (DD Form 1883)." 3. USAR Personnel Center, St. Louis, MO, Orders C-07-433372, dated 26 July 1994, released the FSM from the USAR Control Group (Reinforcement) and transferred him to the USAR Control Group (Retired Reserve), effective 26 July 1994. 4. A review of the FSM's records failed to reveal a copy of a DD Form 1883. This review also failed to reveal any evidence that he was notified of ineligibility for the RCSBP (Option C) due to an untimely filing. 5. In support of her application the applicant provides the following documents. a. A DD Form 1883 that shows the FSM indicated he was married to the applicant on 22 February 1991 and he had three dependent children. He elected spouse-only coverage based on the full amount of retired pay with RCSBP Option C (Immediate Coverage). Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the FSM placed a checkmark in the "Yes" block. Section VI (Signatures) shows the FSM and a witness placed their signatures on the document on 26 April 1991. The reverse side of the form references item 9c (Options) and shows the FSM and applicant placed their signatures on the form on 24 April 1991. b. State of Oregon, Marion County, Oregon Health Authority, Center for Health Statistics, Certificate of Death, filed on 4 January 2013, that shows the FSM died on 19 December 2012. It also shows the FSM was married to the applicant at the time of his death. c. HRC, Fort Knox, KY, memorandum, dated 20 May 2015, from the Chief, RC Retirements Branch, that offered the applicant condolences on the death of her husband. He also provided information and forms for her to complete and submit for verification of the SBP annuity. (The applicant also provides copies of the completed forms and documents she submitted.) d. HRC, Fort Knox, KY, memorandum, undated, from the Chief, RC Retirements Branch, that notified the applicant the statute of limitations for her SBP filing went into effect 90 calendar days from the date the FSM received his letter to submit a DD Form 1883. (1) The HRC official noted, if an election was not made within the required 90 calendar days, the FSM would not be entitled to SBP coverage until he applied for retired pay at age 60. (2) He acknowledged that Army records show the FSM did make an election, but it was not done prior to the 90-day suspense. In addition, the FSM did not apply for retired pay; therefore, the applicant is not entitled to any benefits. (3) He advised her that she could apply to the Army Board for Correction of Military Records. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Retiring members and spouses were to be informed of the SBP options and effects. 2. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those service members 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 RCSBP participation; (B) elect that a beneficiary receive an annuity if the service member dies 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 the service member's death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of Option A. 3. Title 31, U.S. Code, section 3702 (Authority to settle claims), also known as the barring statute, 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 contends that the records of the FSM should be corrected to show he filed a timely RCSBP election and she is entitled to the SBP annuity. 2. Records show, on 29 September 1990, a letter was issued notifying the FSM he had completed 20 years of credible service for retired pay at age 60. 3. The evidence of record shows: * the FSM and applicant married on 22 February 1991 * the FSM elected RCSBP spouse-only coverage (immediate coverage) based on the full amount of his retired pay on 26 April 1991 * an HRC official acknowledged that the FSM – * completed a DD Form 1883, but not within the 90-day suspense * did not apply for retired pay at age 60 (October 2009) 4. There is no evidence of record that shows the FSM was notified of ineligibility for the RCSBP (Option C) due to an untimely filing. In addition, the evidence of record shows the failure to timely file would result in the default election of Option A (Deferred until age 60). 5. The FSM died on 19 December 2012; he was 63 years of age at the time of his death. 6. It appears the delay in submitting the DD Form 1883 may have been, in part, due to the fact that the FSM was anticipating his marriage to the applicant, which occurred on 22 February 1991. a. Based on the evidence of record, it may be concluded that the FSM notified an appropriate authority of his marriage to the applicant within one (1) year of the date of their marriage, thereby establishing eligibility for spousal SBP. b. The FSM's failure to file for retired pay at age 60 is noted. 7. The applicant's request merits favorable consideration based on the fact that the FSM submitted an election for RCSBP coverage, he was never informed it was untimely, and by relying on its validity he failed to take advantage of other opportunities that may have existed to ensure the applicant's financial security. Moreover, the FSM earned these military retirement benefits and to deny an authorized dependent (i.e., the applicant) those benefits would be an injustice. 8. Based on the evidence of record, the FSM's records should be corrected to show the FSM's DD Form 1883 was accepted for RCSBP (Option C), that he timely applied for retired pay at age 60 (effective 1 November 2009), and that the applicant made a timely request for the SBP annuity and unpaid retired pay. 9. At least one of the reasons behind the barring statute is not of major importance in this case. The applicable records are readily accessible and the FSM's/applicant's case is not difficult to prove. 10. The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her eligibility for Army benefits. A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011885 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2