IN THE CASE OF: BOARD DATE: 16 December 2008 DOCKET NUMBER: AR20080014889 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the former spouse of a retired, deceased former service member (FSM), requests that she be entitled to his Survivor Benefit Plan (SBP) annuity payment from the date of his death on 29 April 2000. 2. The applicant states that when her husband, the FSM, died she had major health problems and moved to California. She moved back to Pennsylvania in February 2008 and discovered she was entitled to SBP. However, Defense Finance and Accounting Service (DFAS) denied her SBP based on the Barring Statute. 3. The applicant provides a copy of the FSM's death certificate; a copy of their marriage certificate; a copy of the FSM's December 1999 Retiree Account Statement; and a copy of the DFAS denial of SBP benefits. CONSIDERATION OF EVIDENCE: 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM was born on 21 July 1933. 3. On 31 July 1981, the FSM retired from the Regular Army. A review of his properly executed DA Form 4240 (Data for Payment of Retired Army Personnel) shows that he elected not to participate in the SBP because he was not married. 4. On 28 October 1996, the FSM and the applicant were married in the State of Pennsylvania. DFAS confirms in its letter to the applicant that the FSM timely elected to participate in the SBP after the marriage and notified DFAS on 7 November 1996 of his marriage to the applicant. A review of the FSM's December 1999 Retiree Account Statement shows he made SBP payments until his death. 5. On 29 April 2000, the FSM died. The applicant is shown as the widow on the death certificate. 6. In response to the applicant's request for SBP benefits, DFAS advised her that due to the Barring Statute, no annuity payment could be made to her because she did not apply for the annuity within 6 years of the FSM's death. 7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after their death for surviving dependents. 8. 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. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant and the FSM were married on 28 October 1996. The FSM timely filed an SBP election on behalf of the applicant within a year of the marriage. The FSM made SBP monthly payments until his death on 29 April 2000. 2. Although the applicant is entitled to the SBP annuity payment, DFAS denied her payments based on the Barring Statute. The applicant contends that due to poor health at the time of her husband's death she moved to California and was unaware of her SBP entitlement until 2008 when she discovered the FSM's retired payment accounts on her return to Pennsylvania. It appears that she was unaware of his SBP election prior to 2008 and did not realize she was entitled to an annuity beginning the day after her husband's death. There is no evidence whether she was briefed on her entitlements at the time of her husband's death. 3. The FSM earned a retirement and he timely elected SBP spousal coverage within one year of his marriage. He made monthly SBP payments from his retired pay until his death. The Government has access to all records necessary to establish applicant's entitlement and is therefore not disadvantaged by the delay in the applicant's request. Thus, there is no need to invoke the barring statute. 4. Based on the above, it would be in the interest of justice to grant the applicant's request by showing the applicant timely filed for the SBP benefit upon the death of the FSM, and paying her all monies to which she is entitled since the day after the FSM's death on 29 April 2000. BOARD VOTE: ___X____ ___X____ ___X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 applicant applied for the SBP annuity on 30 April 2000, that it was processed in a timely manner and that she be paid the SBP annuity retroactive to the day following the day of the FSM's death. XXX _______ _ _______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20080014889 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014889 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1