BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150018207 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: 21 March 2017 DOCKET NUMBER: AR20150018207 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 FSM concerned be corrected by showing the applicant submitted her application for payment of the Reserve Component Survivor Benefit Plan annuity on 8 July 2008, and paying her the annuity retroactive to that date. _____________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: 21 March 2017 DOCKET NUMBER: AR20150018207 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, payment of the Reserve Component Survivor Benefit Plan (RCSBP) dating back to the FSM's death. 2. The applicant states: a. Her husband died on 25 August 2000. She applied for the RCSBP annuity on 18 October 2000. She received a letter stating her husband had chosen Option B and she was to reapply 60 days prior to what would be her husband's 60th birthday in July 2008. b. When her husband passed, her mother was already afflicted with the onset of Alzheimer's disease. It was very difficult having her there but not able to lean on her for support. Her father, a Korean War Veteran who served in the Navy depended on the applicant to help him with her mother. In 2004, when he could no longer care for her as his health was failing, the applicant's mother was reluctantly placed in a nursing home. Unfortunately, they were understaffed the applicant had to go to the nursing home every night when she left work to keep her mother alive. The applicant did this until her mother passed on 8 February 2008. c. That same year, one of her father's lungs collapsed and he ended up in rehab for a month. She continued to help him on a daily basis as well as managing his medications and attending all of his medical appointments. It was only recently, when attempted to get her father some Veterans Administration (VA) benefits that she remembered she never followed through with reapplying for her husband's death benefits. d. Although her husband also worked 32 years for the Commonwealth of Massachusetts, he was 52 when he passed and she is only entitled to 39 percent of his pay. The house was only half paid for, but somehow she managed. However, she retired in November 2014 and is now on a fixed income. e. Eight years is a long time for someone to remember to reapply for something that they are entitled to under normal circumstances and the passing of her mother as well as caring for her father was an added hardship. The thought of reapplying did not occur to her until she started going to the VA this summer with her father. f. She submitted her paperwork to the Human Resources Command (HRC) on 23 July 2015. She received a letter dated 21 September 2015 denying her because of a 6-year statute of limitations. She is requesting that the 6-year statute be waived and allow her to receive the survivor benefits that her late husband provided for her in the event of his passing. 3. The applicant provides: * 2 letters * DD Form 2656-7 (Verification for Survivor Annuity) * Standard Certificate of Death * Copy of Record of Marriage * U.S. Human Resource Command Form 249-E (Chronological Statement of Retired Points) * Standard Form 1199A (Direct Deposit Sign-Up Form) * Form W-4P (Withholding Certificate for Pension or Annuity Payments) * social security card * DD Form 1884 (Application for Annuity Under the Retired Serviceman's Family Protection Plan and/or SBP) 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 8 July 1948. 3. The FSM was inducted into the Army of the United States on 5 June 1969. Having 1 year, 11 months and 21 days of prior service, he enlisted in the U.S. Army Reserve (USAR) on 26 May 1971. 4. The FSM married the applicant on 16 June 1978. 5. The FSM retired on 4 April 1997. 6. The FSM died on 25 August 2000. 7. The Defense Finance and Accounting Service (DFAS) has no RCSBP record for the FSM. 8. The applicant provides: a. DD Form 1884, dated 19 October 2000, which shows the applicant applied for a RCSBP annuity based on the death of her former spouse on 25 August 2000. b. A letter from the Chief, Transition and Separations Branch, dated 15 November 2000, which states the FSM was issued a 20-year letter on 27 January 1995. The FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) on 3 August 1996, in which he elected Option B, to provide the applicant an annuity beginning on his 60th birthday, should the FSM die before that date. c. DD Form 2656-7, dated 23 July 2015, and several other documents in support of her claim which were apparently sent to DFAS or the Reserve Component Retirements Branch for processing. The DD Form 2656-7 was date stamped by someone on 17 August 2015. d. A letter from the Chief, Reserve Component Retirements Branch, dated 21 September 2015, which states the Statute of Limitations (Title 31 of the U.S. Code Section 3702) requires that a claim be filed within six years of the date of accrual. If it is not submitted within the required six years, the claim is barred and the Reserve Component Retirements Branch no longer has jurisdiction to consider it. The statute of limitations went into effect on 8 July 2014; therefore, the applicant's request for payment was denied. 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. 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. 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If the member dies before reaching age 60, premiums are deducted from the annuity. DISCUSSION: 1. The Board carefully considered the applicant's request for payment of the RCSBP annuity dating back to her spouse's death. 2. Evidence reveals the FSM was issued a 20-year letter on 27 January 1995. Although the document itself is not available, based on the applicant's correspondence with HRC, it appears he completed a DD Form 1883 on 3 August 1996. At that time, he selected Option B, electing that a beneficiary receive an annuity if he should die before age 60 but delaying payment of the annuity until the date of the FSM's 60th birthday. 3. On 19 October 2000, the applicant prematurely applied for her entitlement; however, she was informed that she needed to make her request at a later date. Understandably, it appears she was overwhelmed with medical, financial, and personal issues while providing care for seriously ill family members, which prevented her from refiling a timely request. 4. The evidence in this case would support a recommendation for correction of the record to show that on 8 July 2008, the applicant submitted an application for her RCSBP annuity, which was then received and processed in a timely manner. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018207 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018207 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2