ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 September 2016 DOCKET NUMBER: AR20170017508 APPLICANT REQUESTS: in effect, Survivor Benefit Plan (SBP) benefits. 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) * Memorandum, U.S. Army Reserve Personnel Center, St. Louis, MO, dated 2 November 1994, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) * DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 2 November 1994 * Marriage License, dated 28 December 1995 * Death Certificate, dated 8 February 2008 * Letters from U.S. Army Human Resources Command (HRC), dated 22 April 2010, 24 July 2017, and 23 February 2016 * Forms W-4P (Withholding Certificate for Pension or Annuity Payments, 2010 and 2017 * DD Form 2656-7 (Verification for Survivor Annuity) signed 20 June 2017 * Standard Form 1199A (Direct Deposit Sign-up Form) dated 21 June 2017 * Letter, Applicant, dated 26 June 2017 and 31 may 2018 * DA Form 5016 (Chronological Statement of Retirement Points), dated 17 July 2017 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: * her husband died in an aircraft accident on 8 February 2008 * she went to the Joint Reserve Base in Fort Worth, TX in 2008 to notifiy the Department of Defense of her late husband's death and find the procedure for signing up for benefits * she was told that since her husband was in the Army Reserves she would have to wait until after her husband's 60th birthdate to be eligible for benefits * she went again after her husband's 60th birthdate and a worker at the Joint Reserve Base determined that her husband and his former spouse were divorced on 30 May 1995, when the former wife was 39 years old * her husband's former spouse remarried on or around 8 June 1996 when she was 40 years old * her husband's former spouse is not eligible to receive the service member's military benefits * she was issued an Identification and Privilege Card in February 2016 and should have been issued on in 2008 * she believes the record shows she did apply for benefits within 8 years 4. The former service member (FSM) was born in March 1953. With prior enlisted service, he was commissioned as a Reserve commissioned officer on 5 June 1977. 5. The FSM and X__ were married on 23 July 1977. 6. The FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 2 November 1994. He completed his SBP Election Certificate the same day. On his election form he: * indicated he was married to X__ and they had a dependent child (born in November 1980) * elected spouse Reserve Component Survivor Benefit Plan (RCSBP) coverage, Option C (Immediate annuity), based on the full amount. 7. The former service member (FSM) was assigned to the Retired Reserve on 5 December 1994. 8. The FSM and X__ were divorced on 30 May 1995. The Final Decree of Divorce states: * the court finds that the award of retirement pay made to (former spouse) is in compliance with the Uniformed Services Former Spouses' Protection Act * it is ordered, adjudged and decreed that the (former spouse) is awarded 50 percent of the U.S. Army disposable retirement that is required to be paid as a result of (service member's) service in the U.S. Army * the court finds that (former spouse) is entitled to be named Beneficiary pursuant to the Armed Services SBP * (service member's) election to provide the SBP benefits to (former spouse) should be continued and maintained hereafter in full force and effect without alteration or withdrawal by (service member) during said service member's lifetime * (service member) shall immediately designate (former spouse), beneficiary pursuant to the Armed Services SBP and that (former spouse) shall continue to remain beneficiary as said service member's former spouse pursuant to said plan * that (service member) shall immediately do such other acts, deeds, and things as are necessary to immediately designate (former spouse) the beneficiary of the Armed Services SBP 9. It is recognized that the divorce decree awarded the SBP to the former spouse and specifically ordered the FSM to timely execute all documents necessary to maintain the applicant's designation as a former spouse SBP beneficiary. There is no evidence the FSM took action directed by the court, nor did the former spouse make a request for a deemed election of the SBP within the one year of the divorce. 10. The FSM and applicant (X__) married on 5 December 1995. 11. The FSM died on 8 February 2008. His death certificate listed the applicant (X__) as the informant and spouse. The FSM was 12. The applicant (X__) notified HRC of her spouse's death and to receive information about benefits. On 4 April 2008, HRC mailed a packet to the spouse and former spouse. HRC representative spoke to former spouse who says that the divorce degree clearly states that she is entitled to the Reserve Component SPB. The HRC representative did not see a DD Form 2656-6 (SBP Election Change Certificate) on file for former spouse coverage or a deemed election. 13. On 22 April 2010, HRC, Transition & Separation Branch mailed the applicant and provided a DD Form 2656-7 for the applicant to complete and requested the following documents in order to obtain benefits from her spouse's service: * copy of Death Certificate * copy of Marriage License * copy of Separation Agreement/Divorce Decree * completed Direct Deposit Form * completed Federal Tax Form W-4P * current Statement of Service (National Guard Bureau Form 23 (Army National Guard Current Annual Statement) 14. There was no evidence of the above documents being received by HRC. 15. On 23 February 2016, HRC, Reserve Component Retirements, also mailed the applicant and requested the same information as on 22 April 2010. HRC received the applicant's documents on 26 June 2017. 16. On 24 July 2017, HRC notified the applicant (X__) that her application for SBP annuity based on the military service of her late husband was denied. HRC states: * according to Article 31 of United States Code, Section 3702, any claim against the government must be submitted within 6 years * the statute of limitation for her claim was reached on 8 February 2014 and unfortunately their office does not have jurisdiction to process her application 17. On 15 March 2019, HRC representative states if FSM elected spouse coverage and both the FSM and the former spouse didn't make a former spouse election, the spouse coverage would continue and the new spouse would then be covered. BOARD DISCUSSION: After review of the applicant and all evidence, the Board found relief is warranted. The applicant’s contentions were carefully considered. The applicant and the FSM were married more than one year before he passed away. There is no evidence she voluntarily relinquished interest to the SBP to the former spouse. The Board agreed she was misinformed when advised to request SBP payments when her spouse would have reached the age of 60, and that SBP payments should have commenced immediately upon the FSM’s death. 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 upon the FSM’s death on 8 February 2008, she properly notified the appropriate DFAS office of his death, and her request for Survivor Benefit Plan payments was received and processed in a timely manner by that DFAS office. Such relief should result in back payments. 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 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. 3. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 4. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members. 5. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. 6. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits a person to elect to provide an annuity to a former spouse. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce. The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce. 7. 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. //NOTHING FOLLOWS//