ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20170001705 APPLICANT REQUESTS: payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Denial letter from the U.S. Army Human Resources Command (HRC) * DD Form 2656-7 (Verification of Survivor Annuity) * W-4 Form * Direct Deposit Form * Death Certificate * Certificate of Marriage * DA Form 5016 (Chronological Statement of Retirement Points) * 20-Year Letter * DD Form 1883 (SBP Election Certificate) * Servicemembes’ Group Life Insurance (SGLI) Payment Explanation of Benefits * Letter from the Defense Finance and Accounting Service (DFAS) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She wants to reverse the denial of the Reserve Component Survivor Benefit Plan (RCSBP) annuity based on the military service of her late spouse. Her late husband died in 2009; she applied for the benefit in 2016. She received a denial letter from HRC. She was unaware that she qualified for her husband's survivor benefits at the time of his death on 23 August 2009. Throughout his career, a U.S. Army Reservist, she understood that no retirement or survivor benefits would be paid to either of them until he reached his 60th birthday on XX X 2017. His 20-Year Letter, dated 12 June 2002, states just that. Her husband completed DD Form 1883 on 8 September 2002 listing her as his survivor. At no time did her husband ever discuss her receiving any benefits prior to his 60th birthday. She always believed that to be the case and has acted on that belief. b. On 16 November 2016, she contacted HRC at Fort Knox to begin the process of claiming survivor benefits from her husband's Reserve career at his upcoming 60th birthday in March 2017. She wanted to begin the process at a time that she felt was "early" so it would be completed in an expeditious manner. At that time, she was informed by Mr. X___X___, HRC SBP Specialist, that she had been eligible to receive survivor benefits since her husband's death on 23 August 2009. She was stunned to be told this as she had contacted DFAS Retired and Annuity Pay Section at the time of his death to claim his VGLI (i.e., SGLI) Death Benefit. At no time did they tell her about his survivor benefits being available to her. On 4 February 2010, DFAS Retired and Annuity Pay Section sent her a letter concerning the continuation of a Voluntary Separation Incentive (VSI) her husband had been receiving. Again, there was no mention of his survivor benefits being available to her since the date of his death. She asks that she begins receiving her husband's survivor benefit payments from his US Army Reservist career from 20 October 1975 to 31 October 2002 immediately. She asks that all payments in arrears that are possible under United States Code 31, Section 3702, be made to her as his widow and survivor. 3. Review of the FSM’s service records shows: a. He was born on XX X 1957. He and Cynthia, the applicant, were married on 11 July 1981. b. Having had prior service, the FSM was appointed as a Reserve commissioned officer and executed an oath of office on 13 May 1978. c. On 12 June 2002, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). d. On 8 September 2002, the FSM completed an SBP Election Certificate (DD Form 1883). He indicated he was married to the applicant and they had no dependent children. He elected “spouse” RCSBP coverage, under Option C (Immediate Annuity) based on the full retired pay. e. The FSM was transferred to the Retired Reserve on 29 October 2002. He completed 20 years, 10 months, and 5 days of qualifying service towards non-regular retirement. f. The FSM died on 23 August 2009. He was 52 years of age. The applicant is listed as his widow and informant on his death certificate. g. On 7 October 2009, the Office of SGLI paid the applicant her death benefit. h. On 10 February 2010, DFAS advised her that she was eligible for payment of Voluntary Separation Incentive that he late husband had elected and had named her as a beneficiary. i. In November 2016, she completed a Verification of Survivor Annuity form (DD Form 2656-7), a form used by the surviving spouse, dependent child(ren), surviving former spouse(s), and/or natural persons with an Insurable Interest to verify eligibility for an annuity under the SBP/RCSBP. j. HRC responded and informed the applicant that her application for SBP annuity based on the military service of her late spouse, has been denied. According to Title 31, U.S. Code, section 3702, any claim against the government must be submitted within six years. The statute of limitation for her claim was reached on 23 August 2015 and unfortunately their office does not have jurisdiction to process your application. 4. By law, RC members who qualified for Reserve retirement, but were not yet age 60 are 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 5. The law (31 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the DD Form 1883 filled out by the FSM on 8 September 2002, where he elected Option C (immediate coverage for his spouse), the Board concluded that his intention was to have SBP coverage immediately cover his spouse. Therefore, the Board recommended approving the applicant’s requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 FSM elected his SBP election on 8 September 2002 (Option C) and the request was received and processed by the appropriate office in a timely manner, and; - the applicant completed a Verification of Survivor Annuity form (DD Form 2656-7) and submitted her request for the SBP annuity in September 2009 (within one month of the FSM's death) and that the request was processed and approved by the appropriate authority for payment of the annuity. 8/19/2019 X CHAIRPERSON Signed by: X 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. 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 4. 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. 5. 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.