RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00641
	 (DECEASED)	COUNSEL:  NONE
	 (APPLICANT)	HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His deceased father’s records be corrected so that he is 
eligible for the Survivor Benefit Plan (SBP) annuity.

________________________________________________________________

APPLICANT CONTENDS THAT:

He is under the permanent legal guardianship of his sister, and 
he and his sister were unaware of the SBP entitlement.  His 
father retired on 31 Oct 61, after serving more than 28 years of 
active military service, and immediately enrolled in the SBP.

He states that no one from the Defense Finance and Accounting 
Office (DFAS) or the Department of Veterans Affairs (DVA) 
Casualty Assistance Office gave them any information regarding 
benefits and/or entitlements.

He lived under the care of his parents due to his permanent 
medical disability, and is now the only surviving beneficiary of 
his father’s SBP.  Both of his parents passed away in January of 
2006.  

On 22 Oct 12, his sister, submitted copies of their parents’ 
death certificates to DFAS, hoping to receive some type of 
benefit or entitlement, but received no response.

With the help of his attorney, he prepared all the necessary 
documentation to properly claim the SBP entitlement and 
submitted this information to DFAS.  DFAS stated that the claim 
was denied because it was not filed within six (6) years 
following his father’s death.  

In support of his request, the applicant provides a letter from 
an attorney from the Legal Assistance Office, copies of his 
father’s DD Form 214, Armed Forces of the United States Report 
of Transfer or Discharge; his mother and father’s death 
certificates, Standard Form 1174, Claim for Unpaid Compensation 
of Deceased Member of the Uniformed Service; DD Form 2656-7, 
Verification for Survivor Annuity; DD Form 137-5, Dependency 
Statement – Incapacitated Child Over Age 21; Military Dependent 
Identification Card; medical evaluation letters, and various 
other documents associated with his request.

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

________________________________________________________________

STATEMENT OF FACTS:

Prior to his 1 Nov 61 retirement, the former member did not 
enroll in the Retired Serviceman’s Family Protection Plan 
(RSFPP).  During the SBP open enrollment period authorized by 
Public Law (PL) 97-35 (1 Oct 81 – 30 Sep 82), the former member 
elected maximum spouse and child coverage.

The Air Force Accounting and Finance Center (AFAFC) records 
reflect the former member had a “Helpless Child.”

On 8 Jan 06, the former member’s spouse died.

On 15 Jan 06, the former member died.

Additional relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force.  Accordingly, there is no need to recite these 
facts in this Record of Proceedings.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFFF recommends denial.  DPFFF indicates that there is no 
evidence of an Air Force error in this case.  DPFFF states that 
the Barring Act limits payment of SBP annuities to those claims 
received within six years of the participant’s death.  It is 
unfortunate the applicant had no further contact with DFAS after 
receipt of their 18 Oct 10 letter; however, his sister’s failure 
to properly act on his behalf, are not grounds to waive the 
Barring Act.  The claim for late payment, previously reviewed by 
the Deputy General Counsel at the DFAS-Denver Center, reported 
in their 10 Aug 02 opinion states that there is no authority to 
waive the six-year statute of limitation. 

DPFFF further states that there is no evidence the applicant or 
any other person responsible or concerned for his wellbeing 
submitted an annuity claim within the six-year time limit.  Had 
a valid claim been submitted before Jan 12, the applicant would 
be receiving monthly SBP payments of approximately $955.

The complete DPFFF evaluation is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s legal representative states in part, based on 
the simple fact that, due to the applicant’s permanent mental 
impairment (autism), the statute of limitations should be 
tolled.  Title 28, United States Code (USC), Section 2501, 
states, in relevant part, “A petition on the claim of a person 
under legal disability…at the time the claim accrues may be 
filed within three years after the disability ceases.”  He asks 
that the Board waive the six-year statute of limitations as a 
matter of equity and justice so that the applicant may inherit 
the money that his father specifically withheld from his pension 
and designated for his son’s benefit.

The applicant’s sister states that her brother has been mentally 
disabled since birth, and deemed to be incapable of self-support 
due to a mental incapacity that existed before his 21st 
birthday.

Her father enrolled in the SBP and subsequently elected maximum 
spouse and child coverage during an SBP open enrollment, and had 
a “Helpless Child.”  Her mother predeceased her father by 
approximately seven days, leaving behind an adult permanently 
dependent and mentally disabled.

She submitted the proper paperwork in a timely manner upon 
learning of the SBP annuity that was paid into to aide in the 
care of her brother.  Her father entered into the program in 
good faith to aide and assist his wife and his permanent 
dependent son.

The authority to waive the six-year statute of limitation should 
be based on the fact that any and all information or requests 
were mailed to an adult who has been and will be mentally 
disabled to his death.  Her brother cannot be held to a standard 
he cannot obtain due to his mental state or condition, nor 
should he be denied, due to the fact his sister, a non-military 
civilian, did not receive these requests.

Attached to her response were duplicate copies of the 
applicant’s 31 Mar 80 and 13 Dec 10 mental evaluations.

The complete response, with attachments, is at Exhibit D.

________________________________________________________________

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 an injustice.  After thoroughly 
reviewing the documentation submitted in support of this appeal, 
we believe that relief is warranted.  In this respect, we note 
that the former member elected maximum spouse and child coverage 
during an SBP open enrollment period authorized by PL97-35 and 
paid the associated premiums to ensure an annuity was available 
upon his death.  In order to establish the annuity, the 
applicant was required to submit a claim for the SBP within six 
years following his father’s death.  However, there is no 
evidence the applicant or any other person responsible or 
concerned for his well-being submitted an annuity claim within 
the six-year time limit.  As a result, DFAS has refused to pay 
the applicant an annuity and DPFFF recommends denial of his 
application, stating that it is untimely, as he did not file a 
valid claim within the six years prescribed by 31 USC § 3702(b).  
While the evidence before us indicates that the applicant failed 
to submit the claim for the annuity, it also reflects that he 
was incapable of self-support.  Therefore, considering the 
applicant’s permanent medical disability, it is clear that he 
did not understand the steps necessary to request the SBP 
annuity.  Additionally, we find it highly unlikely that the 
applicant or his sister (as his legal trustee) would have 
knowingly elected not to pursue this important benefit, which 
the former member had paid premiums for many years.  While there 
appears to be no Air Force error in this case, in balancing the 
equities in this case, we find that justice can best be served 
by correcting the former member’s records as indicated below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to FORMER MEMBER, be corrected to show that on 16 
Jan 06, his son (APPLICANT) submitted a valid claim for payment 
of the Survivor Benefit Plan (SBP) annuity under the provisions 
of Title 10, United States Code, Chapter 73, and the aforesaid 
application was correct and complete, including all necessary 
documentation of dependency.

________________________________________________________________

The following members of the Board considered Docket Number    
BC-2013-00641 in Executive Session on 7 Nov 13, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member



All members voted to correct the records, as recommended.  The 
following documentary evidence pertaining to Docket Number     
BC-2013-00641 was considered:

    Exhibit A.  DD Form 149, dated 1 Feb 13, w/atchs.
    Exhibit B.  Letter, AFPC/DPFFF, dated 7 Jun 13.
    Exhibit C.  Letter, SAF/MRBC, dated 21 Jun 13.
    Exhibit D.  Letter, Applicant, 2 Jul 13, w/atch.




					
					Panel Chair