ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 21 March 2023 DOCKET NUMBER: AR20180013468 APPLICANT REQUESTS: in effect, the records of her deceased husband, a former service member (FSM), be corrected to show she is eligible for the Survivor Benefit Pan (SBP) annuity based on his death. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from US Army Human Resources Command (HRC) * Verification for Survivor Annuity * Marriage Certificate * Death Certificate * Withholding Certificate for Pension or Annuity Payments * Direct Deposit Sign-up Form FACTS: 1. The applicant, the spouse (widow) of the FSM, states: a. She and the FSM were married 30 years. She informed the Army the FSM's death on 29 April 2011. She was misinformed and thought she had to be 62 years old before she could receive the FSM's spousal benefit. b. She was told in March 2018 she should have been receiving the FSM's retirement soon after his death. She called and spoke to customer service in March 2018 before the FSM had been gone 6 years. She was switched around for several months trying to start her spousal benefits. She called and talked to many people starting March 2018. She is a disabled widow without income. She had to take in a roommate to help her pay her bills. She had to sell most everything she had since the passing of the FSM. b. She spoke to a representative with Reserve Component Retirements and was told she would have to appeal to the Board. She was told it did not matter that she had filed her claim before the 6 year deadline. She asks the Board to please help her with the benefits. If she would have known she would have filed soon after the FSM's death. She missed the 6 year point by 6 weeks. c. It has not been three years since she found the error. The FSM died on 24 April 2011. He had been gone 6 years when she started the process of receiving benefits. She did not know she could receive her benefits until March of 2018. She thought she had to wait until she was 62, but she was wrong. The FSM was a veteran for 25 years. d. She thanks the Board for helping her. She is a widow and was misinformed when the FSM died. She would appreciate it if the Board could help her. She has no income, and this would be a great help so she could buy groceries and pay her bills. 3. The FSM's records contain the following documents for the Board's consideration: a. The FSM was born on b. He had prior service in the U.S. Marine Corps and Marine Corps Reserve from October 1970 to October 1976. After a break in service, he enlisted on the Army National Guard on 19 July 1983. c. He served through multiple extension in a variety of assignments, attaining the rank of specialist/E-4. He was last assigned to 2nd battalion, 123rd Armor, KYARNG. d. Orders 256-804, issued by Boone National Guard Center, KYARNG, on 13 September 2002, honorably discharged the FSM from the ARNG effective 13 September 2002. e. The FSM’s Army National Guard Annual Statement, dated 15 October 2002, output reason was loss, which shows the FSM had 18 years, 1 month, and 3 days of service when he was separated. f. The FSM's service record is void of a twenty year letter notifying him of his eligibility for retirement. g. The FSM’s service records are also void of a DA Form 1883 (SBP Election Certificate), a DA Form 2656 (Data for Payment of Retired Personnel), or an NGB Form 22 (Report of Separation and Record of Service). 2. The applicant provides the following documents for the Board's consideration: a. The FSM's death certificate, which shows he died on 24 April 2012 at the age of 58. The surviving spouse is listed as b. A DD Form 2656-7 (Verification for Survivor Annuity) dated 23 July 2018, which shows the FSM died on 24 April 2012. His date of birth was. He was a member of the ARNG. The applicant was requesting RCSBP as the FSM's spouse. They were married on 26 March 1983. c. A marriage certificate showing the applicant and FSM were married on 26 March 1983. d. A Withholding Certificate for Pension or Annuity Payments, dated 23 July 2018 and a Direct Deposit Sign-Up Form, dated 14 August 2018. 3. On 30 August 2018, by letter, the U.S. Army Human Resources Command denied her application for SBP based on the service of the FSM. The letter states according to Title 31 of United States Code, Section 3702, any claim against the government must be submitted within six years. The statute of limitation for your claim was reached on April 24, 2018, and unfortunately their office does not have jurisdiction to process your application. 4. By law and regulation, RC members are required to complete 20 years of qualifying service to be eligible for non-Regular retirement. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant completed 18 years, 1 month, and 3 days of qualifying service towards non- regular retirement. Regardless of the statute of limitations imposed by the Barring Statute (31 U.S.C. § 3702) or the Board’s authority to correct records to show timely submission of documents within said limitations, the applicant does not appear to be an eligible SBP beneficiary because the FSM did not retire from service. The most recent points statement available, prepared 15 October 2002, states the FSM completed 18 years and 1 month of qualifying service towards non-regular retirement. The FSM needed approximately two more years of credible service to reach 20 years. The SBP allows a military retiree to provide an annuity after their death. If the FSM did not retire or complete 20 years of creditable service for nonregular retirement, then the applicant is not eligible for SBP. ? 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 for correction of the records of the individual concerned. 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, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 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. 3. Army Regulation 135-175 established policies, standards, and procedures governing the administrative separation of officer of the Army National Guard and the USAR. This regulation states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention unless the Soldier requests and is eligible for transfer to the Retired Reserve in accordance with applicable Army Regulations. 4. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) states in paragraph 2-1 that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have: (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier. During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years. This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013468 1