BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20170015512 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: 24 October 2017 DOCKET NUMBER: AR20170015512 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, the surviving spouse of the former service member, applied for the Survivor Benefit Plan annuity in a timely manner on 12 July 1994 and paying her the Survivor Benefit Plan annuity retroactive to 20 June 1994, the day following the FSM's death, based on this records correction. ______________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: 24 October 2017 DOCKET NUMBER: AR20170015512 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 correction of her late husband's records to show he transferred to the U.S. Army Reserve (USAR) Retired Reserve effective 29 August 1992. She further requests receipt of Survivor Benefit Plan (SBP) annuities effective 20 June 1994. 2. The applicant states her late husband served in the USAR for 20 years and was transferred from a troop program unit to the USAR Control Group (Reinforcement) (also known as the Individual Ready Reserve) on 29 August 1992. He passed away on 19 June 1994. Her late husband's records need to be corrected to show he transferred to the Retired Reserve so she can receive survivor benefits. 3. The applicant provides: * DD Form 1883 (SBP Election Certificate), dated 9 October 1987 * Headquarters, 88th USAR Command, Orders 180-09, dated 21 August 1992 * Minnesota Department of Health Section of Vital Statistics Certificate of Death, dated 30 June 1994 * DD Form 1300 (Report of Casualty), dated 3 August 1994 * USAR Personnel Center letter, dated 10 October 1995 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. On 24 January 1967, the FSM enlisted in the USAR. 3. The FSM's records contain a DD Form 1883, dated 9 October 1987, showing he elected spouse and children SBP coverage under option C (Immediate Coverage) based on the full amount of his retired pay. The applicant is named as his spouse. 4. The FSM's records contain a USAR Personnel Center (DARP) Form 249-2-E (Chronological Statement of Retirement Points), dated 11 June 1991, showing he completed 24 years of qualifying service for Reserve retired pay at age 60 as of 23 January 1991. 5. The FSM's records contain a memorandum from the FSM to the Commander, Headquarters and Headquarters Company, 6th Infantry Division (Light) (Roundout), dated 16 May 1992, subject: Cogent Personal Reasons for Transfer from a Troop Program Unit to the Individual Ready Reserve (Reinforcement), wherein he requested reassignment to a Reinforcement Training Unit for retirement points only to maintain an active status until 24 January 1993. He stated assignment to an Individual Mobilization Augmentation position was also desirable. 6. Headquarters, 88th USAR Command, Orders 180-09, dated 21 August 1992, reassigned the FSM from a troop program unit to the USAR Control Group (Reinforcement) effective 29 August 1992 for cogent personal reasons. 7. The FSM's records contain a USAR Personnel Center (DARP) Form 249-2-E, dated 8 April 1994, showing he completed 26 years of qualifying service for Reserve retired pay at age 60 as of 23 January 1994. 8. On 19 June 1994, the FSM passed away. 9. On 12 July 1994, the applicant notified the USAR Personnel Center Casualty Branch by letter of the FSM's death and requested information pertaining to survivor benefits. 10. The FSM's records contain a DD Form 1300, dated 3 August 1994, showing he died on 19 June 1994 and the report of his death was received on 24 June 1994. 11. On 28 November 1994, the applicant again contacted the USAR Personnel Center Casualty Branch in writing in response to a telephonic request for a copy of her marriage certificate wherein she indicated a copy of the marriage certificate was enclosed. 12. A letter from the USAR Personnel Center Retired Activities Division to the applicant, dated 10 October 1995, advised her the Defense Finance and Accounting Service (DFAS) would be notified and authorized to pay an annuity to her as the FSM's beneficiary. 13. A letter from the U.S. Army Human Resources Command Reserve Components Retirements Branch to the applicant, dated 18 May 2016, informed her that her application for the SBP annuity was denied for failing to submit a claim within 6 years of the FSM's death in accordance with Title 31, U.S. Code, section 3702. The letter advised her that the statute of limitations was reached on 19 June 2000. She was advised of her right to submit an application to the ABCMR if she disagreed with their decision. 14. A letter from DFAS to the applicant's Congressional representative, dated 12 July 2016, informed him that the FSM elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) with spouse and children coverage. The applicant was the eligible spouse beneficiary and the FSM elected immediate coverage (meaning that his beneficiaries could be awarded an annuity upon his death, even if it occurred before age 60). The letter further informed the applicant's Congressional representative that a beneficiary must make a timely application to the applicable branch of service to be awarded the SBP annuity. According to Title 31, U.S. Code, section 3702, commonly referred to as the Barring Act, any claim against the U.S. Government must be made within 6 years from the date the claim accrues. The FSM died on 19 June 1994 and the statute of limitations expired on 19 June 2000. DFAS determined the letter from the USAR Personnel Center, dated 10 October 1995, was insufficient proof that the applicant made a timely election. DFAS stated the applicant may apply to the ABCMR to request correction of the FSM's records to show she applied for the SBP annuity in a timely manner. REFERENCES: 1. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or 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 RCSBP and RCSBP coverage automatically converts to SBP coverage upon retirement. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 2. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the U.S. 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 U.S. 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. The evidence shows the FSM completed 26 years of qualifying service for Reserve retired pay at age 60. 2. On 9 October 1987, he elected immediate spouse and children SBP coverage (meaning that his beneficiaries could be awarded an annuity upon his death, even if it occurred before age 60) based on the full amount of his retired pay. The applicant is named as his spouse. 3. The FSM died on 19 June 1994. 4. The applicant notified the USAR Personnel Center Casualty Branch by letter of the FSM's death on 12 July 1994 and requested information pertaining to survivor benefits. She again contacted the USAR Personnel Center Casualty Branch in writing on 28 November 1994 and enclosed a copy of her marriage certificate per their request. 5. The USAR Personnel Center Retired Activities Division informed the applicant by letter, dated 10 October 1995, that DFAS would be notified and authorized to pay an annuity to her as the FSM's beneficiary. 6. It appears that the applicant has not received the SBP annuity to which she is entitled due to an administrative oversight and is now prohibited from receipt of the annuity due to the barring statute. 7. The Board may determine the FSM's records should be corrected to show the applicant applied for the SBP annuity in a timely manner and authorize payment of the SBP annuity retroactive to 20 June 1994, the day following the FSM's death. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170015512 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170015512 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2