ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: DATE: 5 March 2020 DOCKET NUMBER: AR20170017128 APPLICANT REQUESTS: in effect, correction of her DD Form 2656-7 (Verification for Survivor Annuity) to show she made a timely application for the Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Applicant's Social Security Card * Certificate of Marriage, dated 21 March 1986 * Former Service Member's (FSM's) Certificate of Death, dated 23 June 2008 * Applicant's Standard Form 1199A (Direct Deposit Sign-Up Form), dated 25 July 2017 * Letter, , dated 25 July 2017 * Applicant's Internal Revenue Service Form W-4 (2017), dated 2 August 2017 * Applicant's DD Form 2656-7 (Verification for Survivor Annuity), dated 2 August 2017 * FSM's DA Form 5016 (Chronological Statement of Retirement Points), dated 22 August 2017 REFERENCES: 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. 2. Army Regulation 135-180 (Retirement for Non-Regular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component (RC) Soldiers. a. Chapter 2 states to be eligible for retired pay after age 60, an RC member must have a minimum of 20 years of qualifying service. For Soldiers who completed the years of qualifying service on or after 5 October 1994, but before 25 April 2005, the last 6 years of qualifying service must have been in a component other than a Regular Component. The Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) will be issued to Soldiers credited with 20 years of qualifying service and should be issued prior to discharge or transfer to the Retired Reserve. b. Chapter 3 states the RCSBP allows RC Soldiers and former Soldiers who are not in receipt of retired pay and received their Notification of Eligibility for Retired Pay after 1 December 1979 to provide a survivor annuity for their dependents should the Soldier or former Soldier die before reaching age 60 and receipt of retired pay. Those eligible must elect one of the three options offered on the DD Form 2656-5 (formerly the DD Form 1883-R). (1) The three elections are: * Option A (Declination of Coverage) – decline to make an election until age 60 or date eligible to request retired pay based on reduced eligibility age * Option B (Deferred Annuity) – elect to provide an annuity beginning on the 60th anniversary of birth should Soldier die before that date or on the date of death should the Soldier die on or after their 60th birthday * Option C (Immediate Annuity) – elect to provide an immediate annuity beginning on the day after Soldier's death (2) If a Soldier who has eligible dependents at the time of election, elects option A, it does not preclude eligibility to subsequently elect survivor benefit coverage under the Survivor Benefit Plan (SBP) with the application for retired pay upon reaching their retired pay eligibility age. Should the Soldier die before reaching their retired pay eligibility age, the survivors will not receive RCSBP benefits. c. All eligible personnel have 90 days from the date of receipt of the 20-year letter to make their election and return the form to the appropriate office. 3. 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 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. 4. 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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR 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 she had paperwork that said she had to wait until her late husband's 60th birthday to apply for his pension. 3. The FSM's DA Form 2A (Personnel Qualification Record (Enlisted) shows his date of birth as . 4. The applicant provided their marriage certificate showing they were married on 21 March 1986. 5. The Michigan Army National Guard memorandum, dated 29 April 1996, subject: Notification of Eligibility for Retired Pay at Age 60, informed the FSM that he completed the required years of service and was eligible for retired pay at age 60. 6. The Michigan Army National Guard endorsement, undated, subject: Notification of Eligibility for Retired Pay at Age 60, provided four blank DD Forms 1883 (SBP Election Certificate) and instructed the FSM to complete DD Form 1883 by selecting the option he desired not later than 15 August 1996 and returning the original and two copies to his unit. The endorsement stated: "Note: DD Form 1883 must be completed and returned to this headquarters within 90 days from the date of receipt or Option "A" will be automatically selected for you. Changes to your Option A at a later date cannot be accomplished." 7. The FSM's DD Form 1883-R, dated 26 July 1996, shows he elected spouse and children coverage under Option B (Age 60) based on the full amount of his retired pay. 8. State of Michigan Department of Military and Veterans' Affairs Orders 147-016, dated 26 May 2000, discharged the FSM from the Army National Guard and transferred him to the Retired Reserve effective 1 June 2000. 9. The FSM's National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the Michigan Army National Guard and transferred to the Retired Reserve (under age 60) effective 1 June 2000. 10. The FSM's death certificate shows he died on 18 June 2008. He was 51 years of age and married to the applicant at the time of his death. 11. The FSM would have reached age 60 on 24 February 2017. Under Option B, his surviving spouse was eligible for the SBP annuity effective that date. 12. The applicant provided her DD Form 2656-7, dated 2 August 2017, certifying she was legally married to the FSM on the date of his death and did not remarry. 13. On 22 August 2017, the Chief, RC Retirements Branch, U.S. Army Human Resources Command, informed the applicant that her application for the SBP annuity based on her late husband's military service 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 limitations for her claim was reached on 18 June 2014. BOARD DISCUSSION: After reviewing the application, the supporting documents, the records, applicable regulations, and the facts above, the Board found that relief is warranted as recommended in the Board Determination and Recommendation below. 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 that she signed the DA Form 2656-7 (Verification of Survivor Annuity) on 2 June 2014 within 6 years of her FSM husband’s death on 18 June 2008; and providing her SBP benefits accordingly. 12/3/2020 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. //NOTHING FOLLOWS//