ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20170013761 APPLICANT REQUESTS: entitlement to a 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) * Self-Authored Letter FACTS: 1. The applicant states that she is requesting SBP and that her spouse passed before his retirement age. 2. The applicant states she was denied an SBP annuity because she waited too long. However, she has tried to claim her annuity since 2009. She received her husband’s retirement package in January 2009. He would have turned 60 years old in November of that year, but had died in March 2001. She was repeatedly given incorrect information by officials at the Department of Veterans Affairs (VA) and that misinformation caused her to be late. It was not until she contacted an official at the United States Army Human Resource Command (HRC) that she got the help she needed. 3. A review of the FSM’s record shows: a. The FSM was born on 5 November 1950. He and the applicant married on 18 March 1973. b. He enlisted in the U.S Army Reserve (USAR) on 27 March1970. He served through multiple extensions or reenlistments in a variety of assignments. c. On 28 April 1995, the USAR Personnel Center, St. Louis, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter stated: You are entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP) established by Public Law 95-397. This plan enables you to provide an annuity for your spouse and other eligible beneficiaries. By law, you have only 90 calendar days from the date you receive this letter to submit your SBP Election Certificate (DD Form 1883). If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60. If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits. d. On 11 September 1995, he completed a DD Form 1883 (SBP Election Certificate). He indicated that he was married to the applicant and they had a daughter (was born in February 1976). He elected “spouse only” Reserve Component SBP (RCSBP) coverage, based on the full amount, under Option B (Age 60). His spouse, the applicant, concurred with his election. [Option B provides an annuity beginning on the 60th anniversary of his birth should he die before that date, or should he die on or after his 60th birthday]. This form was accepted and filed by HRC. e. On 26 September 1997, he transferred to the Retired Reserve. He completed nearly 22 years of qualifying service for non-regular retirement. f. The FSM died on 15 March 2001. His death certificate lists the applicant’s name as the surviving spouse (widow). The FSM was 50 years of age when he died. g. On 5 April 2017, HRC corresponded with the applicant in reference to her eligibility for an annuity based on the military service of her late husband. An official informed her that her application for SBP based on the military service of her late husband, was denied. According to Title 31, U.S. Code, section 3702, any claim against the government must be submitted within 6 years. The statute of limitation for her claim was reached on 5 November 2016 (six years after what would have been her husband’s 60th birthday). The ABCMR was established for the express purpose of considering the existence of error injustice and to make appropriate recommendations for corrective actions. 4. 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. 5. The FSM had an affirmative SBP election for "spouse," and he died in 2001 prior to reaching age 60. Due to misinformation provided by VA officials, the applicant did not file for the SBP annuity on time. When she filed in 2017, the statute of limitations was in effect. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. The FSM elected spouse RCSBP coverage after receipt of his 20-year letter. There is no record he and the applicant divorced. The FSM passed away, and the applicant did not request RCSBP payments within 6 years of his death. The Board agreed to correct the record to show the applicant requested RCSBP payments within 6 years of the FSM’s death to make her request in accordance with public law. 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 that the evidence presented was 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 his widow properly notified the appropriate U.S. Army Human Resources Command and Defense Finance and Accounting Service officials of the former service member’s death on 15 March 2001, and that she applied for RCSBP payments, and that her application was received and processed in a timely manner by the appropriate HRC/DFAS office. __________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. ? REFERENCES: 1. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component 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 2. Once a member elects either option B or option C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in the RCSBP - the options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. Option A, on the other hand, gives an eligible member the option to make an election at age 60. Because there are no benefits payable in the event of death prior to age 60, a person who opts in at that point pays no RCSBP premium cost, but only the basic SBP premium going forward. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013761 3 1