BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150016582 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: 9 March 2017 DOCKET NUMBER: AR20150016582 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 applicant timely submitted a claim to the Defense Finance and Accounting Service for the Survivor Benefit Plan annuity shortly after her husband's death on 17 July 2004 * Defense Finance and Accounting Service timely received, accepted, and processed her claim for the Survivor Benefit Plan annuity * establishing a Survivor Benefit Plan annuity for the applicant effective the day after her husband'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: 9 March 2017 DOCKET NUMBER: AR20150016582 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 spouse of a deceased former service member (FSM), requests payment of the Survivor Benefit Plan (SBP) annuity based on the FSM’s death, despite the Barring Statute. 2. The applicant states, in effect: * her husband, the FSM, passed away on 17 July 2004 while still a member of the Florida Army National Guard (FLARNG); he had completed 22 years, 8 months, and 21 days of service at the time * the State Headquarters completed the Servicemember's Group Life Insurance (SGLI) forms and she received $250,000, but they never advised her of the SBP annuity * in May 2002, the FSM completed a DD Form 1883 (SBP Election Certificate) providing for an immediate annuity, under Option C * she has not remarried and she did not know about the SBP until someone informed her she should be receiving an annuity * this is an oversight by the FLARNG Headquarters, she believes she is entitled to this annuity 3. The applicant provides: * Denial letter from the U.S. Army Human Resources Command (HRC) * DD Form 2656-7 (Verification for Survivor Annuity) * FSM's certificate of death * Marriage certificate * DD Form 1883 (Survivor Benefit Plan Election Certificate) * Notification of Eligibility for Retired Pay At Age 60 (20-Year Letter) * Letter from the Defense Finance and Accounting Service (DFAS) to her Member of Congress * Letter from the Office of Servicemembers' Group Life Insurance * Letter from the National Guard Association of Florida * SGLV Form 8283 (Claim for Death Benefits) * DD Form 2656-7 (Verification for Survivor Annuity) * Letter from The Adjutant General, FLARNG CONSIDERATION OF EVIDENCE: 1. The FSM was born in September 1955. He and Delores, the applicant, were married on 8 August 1973. 2. The FSM enlisted in the FLARNG on 27 October 1980. He served through multiple extensions in a variety of assignments and he attained the rank/grade of staff sergeant/E-6. 3. On 18 April 2002, the FLARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). It notified him that he had completed the required years of service and would be eligible, upon application, to retired pay at age 60. 4. On 15 May 2002, the FSM completed a DD Form 1883. He indicated that he was married to Delores, the applicant, and they had one dependent child (a daughter who was born in March 1987). He elected "spouse and children" Reserve Component SBP (RCSBP) coverage, Option C (immediate coverage), based on the full amount. His spouse concurred with his election and they both signed this form. The DD Form 1883 was entered into his military records. 5. The FSM died on 17 July 2004. He was 48 years of age. His death certificate indicates he was married at the time of death and identified the applicant as his surviving spouse. 6. It appears around March 2015, the applicant communicated with HRC regarding her eligibility for the SBP annuity based on the death of the FSM. She completed a DD Form 2656-7 as a verification of her entitlement to the SBP annuity. 7. On 21 September 2015, by letter, HRC notified the applicant the statute of limitations requires that a claim be filed within 6 years of the date of accrual. If not submitted within 6 years, the claim is barred and the Reserve Component Branch did not have the authority to consider it. The FSM died on 17 July 2004 and the statute of limitations was in effect on 17 July 2014 (i.e., 17 July 2010). Therefore, her request for payment was denied. 8. On 2 August 2016, by letter, DFAS notified the applicant that her first application for the SBP annuity was received on 5 July 2016. By law, DFAS is prevented from issuing retroactive payments more than 6 years before the date DFAS received the application. This is known as the 6-year Barring Statute; therefore, no annuity was payable because there were no documents submitted in support of her claim for the annuity within the 6-year timeframe. 9. On 12 September 2016, DFAS advised her Member of Congress of the same law and the fact that they did not have evidence she submitted her claim within 6 years of the FSM’s death. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, 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, enacted 30 September 1978, provided a way for RC members who qualified for Reserve 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 were 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 3. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. 4. 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. By law and regulation, Reserve Soldiers who completed 20 or more years of service prior to January 2001 were issued a 20-year letter that informed them of their retirement eligibility and were offered the opportunity to enroll in the RCSBP. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt. The FSM's records indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter and his spouse concurred with this election. 2. In October 2000, the law changed. It required written spousal consent for a Reserve member to be able to delay making an RCSBP election until age 60. The change to the law was applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. 3. The FSM was issued a 20-Year Letter on 18 April 2002. There was no requirement for him to complete an election form unless his intent was to decline or elect a lesser amount. In other words, his coverage would have defaulted to spouse and children coverage if he had not acted. Despite that, he was very diligent and did in fact make an RCSBP election for "spouse and children" coverage based on the full amount and his election was entered into his military records. 4. Because he had an affirmative SBP election for "spouse and children," and he died in 2004 prior to reaching age 60, there is no question about the applicant's entitlement to the annuity based on his death. For unknown reasons, when FLARNG personnel assisted her with the SGLI, they failed to counsel her and/or explain to her the entitlement to the SBP annuity. 5. Years later, by coincidence, she learned that she had been entitled to the SBP annuity. Unfortunately, by then the statute of limitations was in effect. In other words, her lack of knowledge of the program led to the denial of a benefit that Congress designed exactly for situations like hers. 6. The FSM made an election and his ARNG unit accepted and filed his election in his official records. It is clear that the FSM's intent had been to provide an annuity for his spouse. It is only equitable and fair to correct the FSM's records to show his spouse, the applicant, timely submitted to DFAS a claim for the SBP annuity based on his death, shortly after he died in 2004, and DFAS timely received and processed her application to establish an SBP 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) AR20150016582 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016582 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2