RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01610
            INDEX CODE:  137.00

            COUNSEL:  WILLIAM D. PURNELL

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  17 NOVEMBER 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

The son of the widow of the former retired member, appointed Power  of
Attorney on her behalf, is requesting  corrective  action  that  would
entitle her to a Survivor Benefit Plan (SBP) annuity.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His mother has and currently suffers from a mental disability.

In support of the appeal, applicant submits  a  copy  of  her  medical
records, correspondence between her attorney  and  the  government,  a
copy of the former member’s military records, a copy of the  complaint
and order filed with the US Court of Federal Claims, and a copy of the
deceased former member’s death certificate.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former member, a reservist, and M--- were married  on  11 February
1950 and he elected Reserve Component SBP (RCSBP) spouse only coverage
based on full retired pay (immediate annuity) when he became  eligible
to receive retired pay except for attaining age 60.  The former member
became eligible to receive retired pay on 14 August 1981 and  he  died
on 9 November 1990.  There is no evidence M---, the applicant, or  any
other person responsible or  concerned  for  this  widow’s  well-being
submitted an annuity claim within the six-year time limit.

_________________________________________________________________


AIR FORCE EVALUATION:

AFPC/DPPRT states that the Barring Act limits payment of SBP annuities
to those claims received within six years of the participant’s  death.
Although the applicant provided medical documents signed by  Dr.  J---
M. C--- showing that M--- has significant mental problems, a Power  of
Attorney to handle her affairs was not obtained until 1999, nine years
after  the  former  member’s  death.   The  claim  for  late  payment,
previously reviewed by the  deputy  general  counsel  at  the  Defense
Finance and Accounting Service - Denver Center (DFAS-DE)  reported  in
their 20 August 2002 opinion that there is no authority to  waive  the
six-year statute of limitation.  It is reasonable to assume  that  the
applicant has, or should have had the capacity to seek information and
applied for the SBP annuity  in  a  timely  manner.   Therefore,  they
recommend denial of the applicant’s request.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 1 July 2005, a copy of the Air Force evaluation  was  forwarded  to
the applicant for review and response within 30 days (Exhibit D).

Attorney for the applicant  provided  a  letter  dated  22  July  2005
stating to hold the applicant’s mother to  the  same  standard  as  an
individual without any legal disability is unjust and  unconscionable.
Moreover, they find it disingenuous for DPPRT to imply that by  making
the correction to the military records of the former member, the Board
will be setting aside the Barring Act, because 28  U.S.C.  2501  gives
the Board the opportunity to prevent this unjust ruling.  Furthermore,
it is important to note that the former member had previously paid for
the survivor benefits and therefore it is inequitable for the military
to deny these benefits at this time.  Also, the applicant’s mother was
not informed by the military of the need  to  file  any  paperwork  to
claim these benefits, nor was she aware that they even  existed.   The
applicant’s mother’s  condition  constitutes  a  legal  disability  as
described in 28 U.S.C. 2501, and therefore they  respectfully  request
that she be deemed entitled to the survivorship  benefits  which  have
accrued since the former member’s death and for future benefits.

Applicant's complete response is attached at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant states it is unlikely that the applicant’s
mother knowingly decided to forgo SBP benefits.  Although it is likely
she did not file a claim either through ignorance of her  entitlements
and/or neglect, the reviewer is of the opinion that  the  strength  of
the evidence is sufficient to warrant  consideration  for  the  relief
requested.   The  applicant’s  contention   that   mental   disability
prevented her from filing a claim is plausible.  Review of her medical
records prior to the time of her husband’s death  and  the  few  years
following his death finds evidence to corroborate the opinion  of  the
more recent psychiatric evaluation that she has had a  chronic  mental
illness  characterized  by   irrational   behavior,   delusional   and
disorganized thinking and impaired ability to manage her  own  affairs
since the time of her husband’s death.  In  addition  to  her  chronic
mental illness,  the  applicant’s  mother  had  significant  recurring
medical problems necessitating repeated hospitalization and  stays  in
nursing homes that further disrupted her life and ability to attend to
anything more than her immediate needs.  The BCMR  Medical  Consultant
is of the opinion that medical documentation supports the  applicant’s
contention and favorable consideration is warranted.

A complete copy of the evaluation is at Exhibit F.

_________________________________________________________________

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 19 September 2005, a copy of the additional  Air  Force  evaluation
was forwarded to the counsel for review and response within  14  days.
As of this date, no response has been received by this office (Exhibit
G).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error  or  injustice.   After  thoroughly  reviewing  the
documentation submitted with this appeal, we are persuaded that mental
disability prevented the widow  of  the  former  retired  member  from
filing a claim for payment of the SBP.   In  this  regard,  the  Board
concurs  with  the  rationale  of  the  BCMR  Medical  Consultant  and
recommends granting the relief sought.  Accordingly, it is our opinion
that the former member’s records should be  corrected  to  the  extent
recommended below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to the deceased service member, be corrected to show that  on
10 November 1990, his widow,  M---  H---,  submitted  a  claim  for  a
survivor benefit annuity.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 27 October 2005, under the provisions of AFI  36-
2603:

                  Mr. Michael K. Gallogly, Panel Chair
                  Ms. Kathleen F. Graham, Member
              Mr. Alan A. Blomgren, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 10 May 05, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRT, dated 22 Jun 05.
   Exhibit D.  Letter, SAF/MRBR, dated 1 Jul 05.
   Exhibit E.  Attorney’s Response, dated 22 Jul 05, w/atchs.
   Exhibit F.  Letter, BCMR Medical Consultant, dated 16 Sep 05.
   Exhibit G.  Letter, AFBCMR, dated 19 Sep 05.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair





AFBCMR BC-2005-01610




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of  the  Department  of  the  Air
Force relating to APPLICANT, be corrected to show that on 10  November
1990, his widow, M--- H---, submitted a claim for a  survivor  benefit
annuity.









   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency