BOARD DATE: 31 August 2017 DOCKET NUMBER: AR20160001649 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 August 2017 DOCKET NUMBER: AR20160001649 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 17 August 2007, 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: 31 August 2017 DOCKET NUMBER: AR20160001649 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 sister 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 few weeks after her brother's 2007 death, she went to the local Army National Guard (ARNG) office and was told, in effect, that she would be unable to receive the annuity until her 60th or 62nd birthday. In 2012 her husband was stricken with cancer and her time was consumed taking care of him throughout 2012 through 2013. In 2014, her daughter became ill and was in and out of surgery. In late 2014, and again in 2015, the applicant underwent surgical procedures. Her time has been monopolized by caring for herself and others. She turned 62 in July and began to look into her brother's annuity. She feels it is unjust because she received incorrect information in 2007 from the ARNG. 3. The applicant provides: * DD Form 2658-7 (Verification for Survivor Annuity) * DD Form 1883 (SBP Election Certificate) * 2 letters * Certificate of Marriage * Death Certificate * Driver License * social security card * Standard Form 1199A (Direct Deposit Sign-Up Form) * Form W-4P (Withholding Certificate for Pension or Annuity Payments) * National Guard Bureau Form 23C (Army National Guard Retirement Points History Statement Application for Retirement Pay) 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 20 May 1951 and 3. The FSM enlisted in the Army National Guard (ARNG) on 26 September 1969. 4. On 6 November 1989, the National Guard Bureau issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application. 5. On 19 November 1989, the FSM made an election within 90 days of receipt of his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). His records contain the DD Form 1883 in which he claimed to be unmarried with no children. He elected to have his sister M___ H. C_____ receive the annuity. He elected Option C (immediate coverage). 6. On 25 September 1991, the FSM was honorably discharged from the ARNG and assigned to the U.S. Army Reserve Control Group (Retired). 7. The FSM died on 16 August 2007. 8. In a letter dated 2 December 2015, an official from the U.S. Army Human Resources Command Reserve Component Retirement section notified the applicant she was not eligible for the RCSBP annuity because effective 2 July 1975, the Statute of Limitations (Title 31 of the United States Code, Section 3701) requires that a claim be submitted within six years of accrual. If it is not submitted within the required six years, the claim is barred and the Reserve Component Retirements Branch does not have jurisdiction to consider it. The FSM died on 16 August 2007. The statute of limitations went into effect on 16 August 2013 in filing her claim. 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. By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are 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 calendar days of receipt. The FSM's records indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter in November 1989. 2. The FSM selected Option C, electing that the applicant receive an annuity immediately upon his death. Evidence shows the FSM died on 16 August 2007. 3. At some point the applicant applied for her entitlement; however, she was informed that she needed to make her request at a later date. It appears she may have received erroneous information. Subsequently, she was overwhelmed with medical, financial, and personal issues while providing care for seriously ill family members, which further prevented her from the accurate information required to perfect and timely file her claim. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001649 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001649 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2