IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20230002615 APPLICANT REQUESTS: the former spouse of a deceased former service member (FSM) requests payment of the Survivor Benefit Plan (SBP) annuity based on her husband’s death. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement from applicant * Denial letter from the U.S. Army Human Resources Command, 4 February 2022 * Statement to the U.S. Army Human Resources Command * DD Form 1883 (Survivor Benefit Plan Election Certificate) * FSM’s Death Certificate * DD Form 2656-7 (Verification of Survivor Annuity) * Direct Deposit and W-4 Forms * NGB Form 22 (Report of Separation and Record of Service) * Notification of Eligibility for Retired Pay at Age 60 FACTS: 1. The applicant states she requests her application to receive Survivor Benefit Annuity on her late former spouse be reviewed and reconsidered as she was married to him for over 21 years, and he elected for her to receive his annuity on his DD Form 1883. She believes an injustice has occurred concerning the denial of her request to receive the SBP annuity as her spouse had elected for her to receive his retirement annuity on DD Form 1883. Since the time of his death, she has made numerous attempts to find out what she needed to do and where to go to apply for his retirement annuity benefits. She was never advised by anyone in the Military as to what and when to apply. In fact, she had almost given up on this endeavor until she finally talked to a former commander in the unit in which he served who advised her on how and where to apply. No one was aware of a statute of limitations to apply. She has provided a letter from her former spouse's commanding officer (COL Retired) who served with him during his time of service and who has personal knowledge of her spouse's service and her attempts to find out how to apply for his benefits and where to go for the right assistance with the application. 2. Review of the FSM’s service records shows: a. The FSM was born on. He and Ma__, the applicant. were married on. b. The FSM entered he Georgia Army National Guard (GAARNG) on 7 March 1955 and he was transferred to the Retired Reserve on 6 March 1990, having completed over 35 years of ARNG and qualifying service. c. On 25 August 1975, the National Guard Bureau issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year letter). d. On 12 August 1979, the FSM completed a DD Form 1883 (SBP Election Certificate). He indicated he and , the applicant, were married in and they had 2 children, and , born in and respectively. The FSM elected spouse and children Reserve Component Survivor Benefit Plan (RCSBP) coverage; Option C (immediate coverage) based on the full amount. e. The FSM was transferred to the Retired Reserve on 6 March 1990. He would have turned 60 years of age on . f. The FSM died on 20 October 1990. He was years of age at the time of death. The death certificate reflects a name other than the applicant as the spouse and informant. 3. On 22 October 2021, the applicant submitted a DD Form 2656-7 (Verification of Survivor Annuity). She certified that the FSM died on, and she is claiming the SBP annuity based on his death. She also certified she is not married. 4. On 4 February 2022, the U.S. Army Human Resources Command (HRC) wrote back to the applicant expressing their sincere condolences for her loss, and appreciation to her loved one for their many years of service to this nation. The HRC official informed her that her application for a Survivor Benefit annuity based on the military service of her late spouse has been denied. 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 her claim was reached on October 20, 2000. If she disagreed with that decision, she may appeal to the Army Board for Correction of Military Records (ABCMR). 5. The applicant provided a letter from COL (Retired) who states the applicant’s request needs to be reviewed and records need to be corrected or reconsidered for her to receive retirement survivor benefits from SFC [Name] service of some 35 years as elected by him upon his 20 year verification. It appears that the Army failed to provide her with the appropriate information to apply as his first spouse in making her claim in any sort of timely manner. He was the Battalion Commander from 1981 until 1983 and served with [FSM] during the period [Applicant] was married to him. If this six (6) year statute of limitations could be waived due to the circumstances, he believes she is entitled to receive his benefits as she has made several attempts to try and make her claim starting back as far as the 1990's. She was his first spouse for 20 something years. His second spouse was only married to him for approximately (6) months and he died shortly after their marriage. She received no survivor benefits. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board found no evidence indicating the FSM intended to designate the applicant as a former spouse SBP beneficiary, and there is no divorce decree in the record. SBP elections are made by category, not individual, and as far as the record indicates, neither the applicant nor the FSM attempted to change the SBP beneficiary from spouse to former spouse within one year of their divorce. The Board found the applicant, as a former spouse of the FSM, is therefore not entitled to SBP benefits. 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 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 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 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. 3. Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were available: * Option A – elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B – elect that a beneficiary receives an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday * Option C – elect that a beneficiary receives an annuity immediately upon their death if before age 60 4. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. 5 Title 31 U. S. Code (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, U.S. Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002615 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1