ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 September 2019 DOCKET NUMBER: AR20170018884 APPLICANT REQUESTS: reconsideration of her previous request for correction of her deceased husband's (a former service member (FSM)) Survivor Benefit Plan (SBP) election to show her and her son as the rightful beneficiaries. 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), dated 23 October 2017 * FSM's Family History Record, dated 13 June 1934 * FSM's Birth Certificate, dated 9 August 1956 * Applicant's Birth Certificate, dated 17 March 1968 * FSM's DD Form 214 (Report of Separation from Active Duty) * FSM's Decree of Divorce, dated 9 January 1992 * FSM's Notification of Eligibility for Retired Pay at Age 60, dated 17 April 1995 * FSM's DD Form 1883 (SBP Election Certificate), dated 25 June 1995 * FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service, dated 31 May 1998 * Orders 167-321, Adjutant General's Department, Austin, TX, dated 16 June 1998 * FSM's Son's Birth Certificate, dated 2 September 2004 * FSM's Marriage License, dated 6 March 2007 * FSM's Son's Social Security Card, dated 24 August 2007 * Applicant's Social Security Card, dated 24 August 2007 * FSM's U.S. Uniformed Services Identification Card, dated 12 March 2009 * FSM's Social Security Card * FSM's Certificate of Death, dated 7 June 2010 * FSM's NGB Form 23B (Army National Guard Retirement Points History Statement) dated 7 July 2010 * DD Form 149, dated 14 August 2010 * Letter, Army Board for Correction of Military Records (ABCMR), dated 17 February 2011 * Identification and Privilege Card, applicant, dated 20 September 2016 * Identification and Privilege Card, son, dated 9 November 2016 * Letter, Army Review Boards Agency (ARBA), dated 12 May 2017 * DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) dated 4 August 2017 * DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces) dated 8 August 2017 * Letter, Defense Finance and Accounting Service (DFAS), Indianapolis, IN, dated 25 September 2017 * Letter to DFAS Defense Office of Hearings and Appeals (DOHA), applicant, not dated * Letter, U.S. Army Human Resources Command (HRC) Fort Knox, KY, Reserve Component Retirements, dated 2 October 2017 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR201000021788 on 17 February 2011 and AR20160003458 on 12 May 2017. 2. The applicant (deceased FSM's current spouse, X___) states: * on 12 March 2009, the FSM changed his beneficiaries to add his current spouse and son to his SBP * the FSM removed his former spouse and married daughter's information * she has not received these changes from St. Louis, MO * she is trying to arrange for her son to receive his SBP annuity benefits * she found out that the changes her FSM made were never sent to St. Louis, MO * she is appealing for the changes to her FSM SBP be made and updated 3. The applicant's husband (FSM (Army National Guardsman) divorced his former spouse (X___ ) on 9 January 1992. There was no obligation for the FSM to provide SBP benefits to his former spouse as part of their divorce decree. 4. The applicant's husband (FSM) received his Notification of Eligibility for Retire Pay at Age 60 on 17 April 1995. 5. The FSM completed his SBP Election Certificate on 25 June 1995. The FSM indicated that he was not married and had dependent children. His SBP Election Certificate shows he selected "Children only," with Option C (immediate coverage), based on the full amount. 6. The FSM was transferred to the Retired Reserves on 31 May 1998. 7. The FSM's son was born on 2 September 2004. 8. On 6 March 2006 the applicant (X___) and the FSM were married. 9. The applicant states she and the FSM completed paperwork to change the FSM's SBP beneficiaries to the current spouse and his son on 12 March 2009, 3 years after their marriage. There is no SBP Election Change Certificate as evidence. 10. On 14 August 2010, the applicant submitted an application to the ABCMR to request an update of her spouse's SBP adding herself and her son a beneficiaries. 11. On 17 February 2011, the ABCMR notified the applicant and stated the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available. There was no evidence that the applicant processed an SBP claim through U.S. Army, Human Resources Command (HRC). The Board returned the application without prejudice and without action taken by the Board. 12. On 1 February 2016, the applicant submitted another application to the ABCMR again requesting to change of her spouse's SBP by adding herself and her son as beneficiaries. 13. On 12 May 2017, ARBA notified the applicant of her request for her spouse's old military record from the Texas Army National Guard (TXARNG), be removed and updated in order to receive RCSBP. ARBA states her appeal must go to the State Adjutant General of the TXARNG. Her application was returned without action and without prejudice. 14. The applicant completed a RCSBP Election Certificate on 4 August 2017. The certificate states the principle purpose of the form is used by Reserve Component members, during the 90 day period after receiving notification of eligibility to receive Reserve retired pay, to make an election for the RCSBP. The applicant selected "Option B" deferred annuity and "Children only" as the type of coverage. 15. On 8 August 2017, the applicant completed a Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces. The applicant listed her son as the child in her custody. 16. On 25 September 2017, DFAS, Retired and Annuitant Pay, notified the applicant that her claim for entitlement to the SBP annuity was denied. DFAS states their records indicate that the first application for annuity was received on 23 September 2017. The claim for an annuity was more than 6 years after the claim accrued. The claim was untimely and was barred from consideration by DFAS and denied. The applicant provided a copy of her appeal to DOHA, however, there is no evidence of the DOHA decision. 17. On 2 October 2017, HRC, Reserve Component Retirement, notified the applicant 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 (USC), Section 3702, any claim against the government must be submitted within 6 years * the statute of limitation for her claim was reached on 7 June 2016 and unfortunately our office does not have jurisdiction to process her application 18. Title 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. 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, USC, 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. BOARD DISCUSSION: After reviewing the application and all evidence, the Board found relief is not warranted. The applicant’s contentions were carefully considered. The record is absent evidence the FSM added his son to the RCSBP within one year of his son’s birth. The record is also absent evidence the FSM added the applicant to his RCSBP within one year of their marriage. According to public law, the FSM would have the opportunity to change his election upon turning 60 years old when requesting retired pay. However, he passed away before reaching the age of 60. Without any evidence showing the FSM elected to change his RCSBP, and that the election was not processed in a timely manner by processing officials, the Board agreed there is insufficient evidence to amend the previous Boards’ decision to deny relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR201000021788 on 17 February 2011, and AR20160003458 on 12 May 2017. X CHAIRPERSON Signed by: 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. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service), in effect at the time, implemented statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers. Chapter 3 provided policies and procedures for implementing Public Law 95-397, as amended. Soldiers who were issued a Notification of Eligibility for Retired Pay at Age 60 after 1 December 1979 have been or will be furnished the Reserve Component SBP information and election certificate with their 20-year letter. All eligible personnel have 90 days from receipt of the 20-year letter to make their elections and return the form to the appropriate office. 2. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 (and eligible to participate in SBP), 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. If death does not occur before age 60, the Reserve Component SBP costs for options B and C are deducted from the member's retired pay (costs for option C being the more expensive). Once a member elects either Options 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 – it automatically rolls into SBP coverage. If Reserve Component SBP 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. 3. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. 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. //NOTHING FOLLOWS//