ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 September 2020 DOCKET NUMBER: AR20190009259 APPLICANT REQUESTS: as the widow of the Former Service Member (FSM), to be added as the FSM’s Reserve Component Survivor Benefit Plan (RCSBP) annuitant. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Marriage License * DD Form 1883 (Survivor Benefit Plan Election Certificate) * State of Certificate of Death * Medical Documents * DD Form 2656-7 (Verification for Survivor Annuity) * W-4P (Withholding Certificate for Pension or Annuity Payments) * Account Verification Statement * Income Verification Letter * Veterans Administration information concerning SBP eligibility requirements 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 that she inquired in 2017 regarding SBP entitlements and was informed that she needed the deceased FSM’s 20 year letter and his DD Form 1883. At that time, she had no idea where the documents were located. She began researching the documents required for application within several veteran websites resulting in her obtaining information concerning Survivors Pension benefits, also referred to as Death Pension, as a tax free monetary benefit payable to low income, un-remarried surviving spouses and their children of a deceased veteran. At the time she worked full-time and received a decent salary resulting in her assuming that she did not qualify for pension. In 2018 as she began downsizing and preparing for a move, she located the FSM’s DD Form 1883 and 20 year letter and therefore decided to revisit her attempt to obtain entitlements related to his pension. She also expresses a delay in seeking pension entitlement due to the FSM’s untimely death. From diagnosis to his expiration, there were only 30 days. She was overwhelmed with requirements resulting from her assisting with the care of her sick mother and nephew with epilepsy. Her father died in 2003 causing her to become the primary caregiver to both her mother and nephew. From 2003 to 2010 her mother was diagnosed with multiple medical conditions leaving her as the primary caregiver for the past 18 years, while working full-time. 3. A review of the FSM’s military records reflects the following on: a. 1 July 1967 – he was inducted into the Army and served 1 year, 7 months and 13 days on active duty prior to being transferred into the Army Reserve on 3 March 1969. b. 20 June 1973 (Order# 06-1158238) – he was discharged from the Army Reserve effective 1 July 1973. 4. The applicant provides: a. Marriage License, dated 14 September 1978 – reflects applicant’s relationship to the FSM. b. DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 1 March 1999 – reflective of the FSM’s signed election of SBP under option c- immediate annuity beginning on the day after date of his death, whether before or after age 60. c. State of Certificate of Death, dated 8 August 2001 – reflective of the death of the FSM on 3 August 2001. d. Medical Documents – reflective of the applicant’s mother’s medical history dating back to 2005. e. DD Form 2656-7 (Verification for Survivor Annuity), dated 22 March 2019 – reflects the applicant submitted a claim for an annuity under the RCSBP, and she is currently receiving another annuity in the amount of $41.67. f. W-4P (Withholding Certificate for Pension or Annuity Payments), dated 22 March 2019 – reflects the applicant’s annuity withholding election at the single rate. g. Account Verification Statement, dated 22 March 2019 – reflects the applicant’s bank account information. h. Income Verification Letter, dated 22 March 2019 – reflects the applicant currently being in receipt of a retirement annuity from the Michigan Military Affairs Retirement System in the amount of $41.67 with the effective date of retirement of 1 August 2001. i. Veterans Administration information concerning SBP eligibility requirements – reflective of the current SBP service requirements, dated 22 May 2019. 5. The applicant did not provide, nor does a review of the deceased FSM’s records contain, the previously mentioned 20 year letter or evidence of service beyond 1 July 1973. 6. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 7. 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. 8. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. 9. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief was warranted. Given the totality of the circumstances, to include the applicant’s explanation for the time-elapsed between the FSM’s passing and her appeal; the difficulty in the applicant finding and understanding the inherent military (and therefore unfamiliar) documents; the clear lack of applicant’s understanding of the SBP; and the facts referenced above are sufficiently determinative in their aggregate to grant relief. 2. While the applicant’s request exceeds DFAS’ allowance for processing claims beyond the six (6) year Statute of Limitations (SOL), the Board found that the applicant provided sufficient extenuating circumstances to credibly warrant her lack of actual or constructive knowledge until 2017. Therefore, the Board agreed that the SOL under the barring statute should be waived in this case and the applicant should receive the full amount of annuity from the time of the FSM’s death on 3 August 2001. 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 FSM selected child and spouse coverage of SBP on 1 March 1999, that the request was received and processed by the appropriate office in a timely manner, and that the spouse be paid all annuity due her since the FSM’s death on 3 August 2001, overcoming the six-year statute of limitations set forth in Title 31, U.S. Code, section 3702. 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. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. 4. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. 5. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009259 5 1