ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 December 2020 DOCKET NUMBER: AR20180003530 APPLICANT REQUESTS: in effect, correction of the record to show she submitted a timely request for the Reserve Component Survivor Benefit Plan (RCSBP) annuity after the death of her spouse, a former service member (FSM), so she may be eligible to receive the Special Survivor Indemnity Allowance (SSIA) APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two self-authored letters * Verification for Survivor Annuity * SBP Election Certificate * identification cards * Certificate of Death * letter from the U.S. Army Human Resources Command FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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, the spouse of the FSM, states: * she was not informed she needed to apply for SBP * her husband, the FSM, died in February 2005 * she contacted the Department of Veterans Affairs (VA) to set up her survivor benefits because her husband was rated by the VA at 100 percent * she was told she qualified for Dependency and Indemnity Compensation (DIC) * the VA sent the request in for her to receive DIC * she questioned the VA about her husband's 20 years of retirement time * they stated it was a better course of action to apply for DIC * on 4 December 2017, she went into the Defense Enrollment Eligibility Reporting System (DEERS) office to renew her ID card * she mentioned she wanted to know information about her husband's retirement * she was told to go to the Survivor Outreach Services office * she talked to the personnel in the office and was told she may be eligible for the SSIA offset * it was explained SSIA was not available in 2005 but came into effect in 2008 * the personnel contacted HRC and found there was no SBP packet in the system for her * she was told she would have to be awarded SBP in order to draw the SSIA offset * she sent a packet to the Defense Finance and Accounting Service (DFAS) and was denied on the basis that it was over 6 years since the death of her husband * she is asking the Board award SBP to her, which will allow her to receive the SSIA offset 2. The FSM's records contain a memorandum from Headquarters, Oregon, National Guard, dated 19 March 1999, subject: Notification of Eligibility for Retired Pay at age 60. The FSM's records are void of a DD Form 1883 (SBP Election Certificate). 3. The applicant provides the following documents for the Board's consideration: a. A DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 27 August 2002, which shows: * the FSM's date of birth was * the FSM was married and had dependent children * he elected SBP coverage for spouse only * he elected coverage based on his full amount of retired pay * he elected immediate coverage * the applicant's name is on the form as the FSM's spouse * the FSM's signature appears on the form b. A DD Form 2656-7 (Verification for Survivor Annuity), dated 8 December 2017, which shows: * the FSM's date of birth was * his date of death was 10 February 2005 * the applicant's name appears on the form as the claimant * she's claiming the RCSBP as the FSM's spouse * she certified she was legally married to the FSM on the date of his death c. A Certificate of Death, which shows the FSM died on 10 February 2005. The applicant is listed as the informant. d. A letter from HRC, dated 15 December 2017, which states the applicant's request for SBP was denied because a claim against the government must be submitted within 6 years and the statute of limitations for her claim was reached on 5 February 2011. 4. See below for applicable references. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board found the record shows the FSM intended to provide immediate RCSBP coverage for his spouse in the event that he died prior to reaching age 60. The Board noted that after the FSM's death, the applicant did not apply for an SBP annuity based on the understanding that DIC was the better option for her and receipt of DIC would preclude receipt of an SBP annuity. The Board agreed that the applicant could not have anticipated the later change in law under which she could receive at least a portion of the SBP annuity in addition to DIC. Based on a preponderance of evidence, the Board determined the record should be corrected to show the FSM submitted a timely election for RCSBP coverage and the applicant submitted a timely request to receive an SBP annuity after the FSM's death. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? 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 former service member made a timely election for spouse Reserve Component Survivor Benefit Plan coverage based on full retired pay under option C and by showing the applicant submitted a timely application for the Survivor Benefit Plan annuity after the former service member's death on 10 February 2005. 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. REFERENCE: 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. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Before the law was amended, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A. 3. Title 10 U.S. Code, section 1450(m) established the Special Survivor Indemnity Allowance (SSIA), a benefit for surviving spouses who receive a Survivor Benefit Plan (SBP) annuity that is offset by a Dependency and Indemnity Compensation (DIC) payment from the VA. Title 10 U.S.Code, section 1450(c) eliminates the DIC offset in phases beginning in 2021. 4. Title 31, U.S. Code, section 3702, also known as the Barring Statute, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003530 4