RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				DOCKET NUMBER: BC-2014-00851
      
							COUNSEL:  NONE
	
							HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

She be paid retroactive Survivor Benefit Plan (SBP) annuity 
payments.


APPLICANT CONTENDS THAT:

She was advised that the longer she waited to file for Department 
of Veteran’s Affairs (DVA) benefits, the higher the pension would 
be.  She knew her salary would not cover her son’s college 
tuition; therefore, she waited until he completed high school to 
apply.  

In 2008, the DVA advised her to file for SBP benefits through the 
Defense Finance and Accounting Service (DFAS).  In January 2009, 
DFAS informed her that due to the six-year window she was no 
longer eligible for benefits.  

DFAS-DE 1340.1-G, Your Guide to Survivor Benefits, dated July 
2001, does not reference a “six-year” rule and she was unaware of 
the rule.  The Ombudman’s office informed her that the rule was 
law and could not be changed.  

The Board should consider her untimely application in the interest 
of justice because DFAS refused to reconsider her application and 
suggested she file an appeal to the AFBCMR.

In support of her request, the applicant provides a personal 
statement, copies of the decedent’s DD Form 214, Certificate of 
Release or Discharge from Active Duty; death certificate, marriage 
license and various other documents associated with her request.   

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


STATEMENT OF FACTS:

On 24 April 1987, the applicant and her former spouse were 
married.  

On 21 August 2002, the former service member passed away.


AIR FORCE EVALUATION:

DFAS–RPB-JBJE/CL makes no recommendation.  On 26 November 2002, 
DFAS received confirmation that the former member elected RCSBP 
for his spouse.  At that time an annuity claim package would have 
been sent to the applicant.  

An annuitant’s claim for RCSBP and SBP accrues from the date of 
the member’s death.  Thus, the annuitant has six-years from the 
date to claim the RCSBP/SBP.  In order to constitute a claim, the 
person, in addition to providing the requisite information in 
accordance with Title 31 United States Code (USC) 31, section 
3707(b), must also indicate in some fashion they believe the US 
government owes them funds.  A person’s notification of a member’s 
death, even in writing, does not constitute a claim for payment.  

As a result, the applicant’s claim for an annuity filed in 2009, 
seven-years after her deceased spouse’s death was denied because 
she did make a claim for the benefits within the six-years 
prescribed by statute.   

The Department of Defense Financial Management Regulation 
(DoDFMR), volume 7 [sic], chapter 46, paragraph 461503 [sic] 
states, “the effective date of entitlement is the date on which 
the requirements of law are met, subject to the six-year statute 
of limitations.”  

The complete DFAS evaluation, with attachments, is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She never received an annuity claim package as stated in the DFAS 
letter.  Her spouse’s former unit provided her with the Guide 
dated July 2001; however, it did not include any process or 
instruction regarding a claim process.   

She filed a claim for benefits six years and four months after her 
spouse passed away not the seven years as quoted in the DFAS 
memorandum.  

No reference to Title 31 USC 3702(b) and its provisions and/or 
limitations could be found in the July 2001 version of the Guide.  
In fact, she could not find any reference to Title 31 USC 3702 (b) 
in the most recent 2013 Guard and Reserve Personnel Fact Sheets.  

She finds it difficult to understand, as a surviving spouse with 
no knowledge of DFAS practices and procedures and no known receipt 
of an annuity claim package, how she should have been made to 
understand and acknowledge the applicability of Title 31 USC, 
3702(b) to her request for survivor benefits.  

Her case warrants further review and consideration.  Her spouse 
indicated, by virtue of his RCSBP election, his desire for his 
earned benefits to be directed to her in the event of his death.  
She has a right to these survivor benefits and does not fully 
understand this to be interpreted as a claim against the US 
government.  

Her appeal is based on principle versus an arbitrary application 
of a timed based law that she had not been informed of, notified 
of, or otherwise advised of by her deceased spouse’s unit, the Air 
Force, or DFAS.  

According to the DFAS letter, dated 4 Aug 14, the only challenge 
to her receipt of the earned survivor benefits within the RCSBP, 
is the timing of submission requesting these benefits

The applicant’s complete submission is at Exhibit E.


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 in order to 
establish the annuity, the applicant was required to submit a 
claim for the RCSBP within six years following the former member’s 
death.  However, there is no evidence the applicant submitted an 
annuity claim within the six-year time limit.  As a result, DFAS 
has refused to pay the applicant an annuity stating that it is 
untimely, as she did not file a valid claim within the six years 
prescribed by 31 USC § 3702(b).  We note that DFAS states that 
they received confirmation that the former member elected RCSBP 
for his spouse on 26 November 2002 and at that time an annuity 
claim package should have been sent to the applicant.  However, 
the applicant contends that she never received an annuity claim 
package and was misinformed regarding her entitlement as a 
beneficiary under the RCSBP.  In balancing the equities in this 
case, we find it more likely than not that the applicant has been 
the victim of an injustice.  Moreover, we do not find it 
reasonable that she would have knowingly elected not to pursue 
this important benefit.  Therefore, we recommend the decedent’s 
records be corrected as indicated below.  

4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel will 
materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably considered.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force 
relating to the FORMER MEMBER, be corrected to show that on 
22 August 2002, the applicant submitted a DD Form 1884, 
Application for Annuity Under the Retired Serviceman’s Family 
Protection Plan (RSFPP) and/or Survivor Benefit Plan requesting 
payment of the Reserve Component Survivor Benefit Plan annuity.


The following members of the Board considered AFBCMR Docket Number 
BC-2014-00851 in Executive Session on 15 May 2015, under the 
provisions of AFI 36-2603:

	Vice Chair
	Member
	Member

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

	Exhibit A.  DD Form 149, dated 18 February 2014, w/atchs.
	Exhibit B.  Applicant’s Available Personnel Records.
	Exhibit C.  Letter, DAFS-RPB-JBJE-CL, dated 10 June 2014.
	Exhibit D.  Letter, SAF/MRBR, dated 4 August 2014.
	Exhibit E.  Letter, Applicant, dated 1 September 2014.