| Mr. Carl W. S. Chun | Director | |
| Ms. Joyce A. Wright | Analyst |
| Mr. Samuel A. Crumpler | Chairperson | |
| Ms. Barbara J. Ellis | Member | |
| Ms. Shirley Powell | Member |
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that she, as the spouse of the deceased former service member (FSM), be granted a Survivor Benefit Plan (SBP) annuity.
2. The applicant states that she is entitled to SBP and Dependency and Indemnity Compensation (DIC).
3. The applicant provides copies of the FSM's Death Certificate; Marriage Records; DD Form 1884 (Application for Annuity Under the Retired Service's Family Protection Plan [RSFPP] and/or SBP); and several additional documents pertaining to her case.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of error which occurred on 10 April 1996, the date of the FSM's death. The application submitted in this case is dated 14 May 2003.
2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.
3. The FSM's military records show that he enlisted on 26 August 1960 and was married on 27 January 1962. He continued to serve until he was honorably discharged on 20 February 1970.
4. After a break in service, he reenlisted on 23 October 1974 where he continued to serve. He was promoted to sergeant first class (SFC/E-7) on 15 April 1980.
5. The FSM’s personnel records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 9 June 1982. Part IV (SBP Election) of the DA Form 4240 shows that the FSM elected reduced amount coverage for his spouse in the amount of $300.00.
6. On 31 August 1982, the applicant was placed on the Army of the United States Retired List effective 1 September 1982, in the rank of SFC.
7. The FSM died on 10 April 1996.
8. The applicant provided copies of several documents that show she applied for DIC and was awarded a VA pension.
9. Information provided by the Defense Finance and Accounting Service (DFAS) revealed that the FSM had an SBP election reflected on his account.
10. The applicant provided documentation to show that she applied for unpaid compensation and SBP.
11. On 6 May 2003, the Chief, Army Retirement Services responded to an inquiry pertaining to the applicant's SBP annuity. The applicant was informed that she did not report the FSM's death until October 2002. She was also informed that the Statute of Limitations bars the Army from processing an SBP annuity request that is more than 6 years after the date the request should have been submitted, the date of the military member's death. The applicant was informed that she may request that the Army Board for Correction of Military Records (ABCMR) correct her spouse's military records to show she requested SBP at the date she was first eligible.
12. 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 death to surviving dependents.
13. 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.
14. Pride v. United States, 40 Fed Cl. 730 (1998) provided that if a Board for Correction gives rise to the claim, the barring statute does not start to run until the Board orders the correction.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that the FSM was placed on the Retired List, applied for SBP survivor benefits, and elected reduced amount coverage. Records at DFAS show that the FSM continued to pay SBP premiums until his death.
2. The FSM died on 10 April 1996 and the applicant failed to report the FSM's death until October 2002. The applicant was informed by the Chief, Army Retirement Services that the Statute of Limitations bars the Army from processing an SBP request that was more than 6 years old after the date of the military member's death. It appears that the applicant was not aware of this statute. Therefore, in the interest of justice, the Board recommends that the FSM's records be corrected to show that the applicant was entitled to SBP annuity effective 10 April 1996, the date of the FSM's death. It would be inequitable to deny the applicant the SBP annuity because of the passage of time.
BOARD VOTE:
__sc____ ___be___ __sp_____ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
| CASE ID | AR2003091131 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20040309 |
| TYPE OF DISCHARGE | HD |
| DATE OF DISCHARGE | 19820831 |
| DISCHARGE AUTHORITY | AR 635-200.. CHAP 12 |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 346 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2006 | 20060005952C070205
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 November 2006 DOCKET NUMBER: AR20060005952 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The DA Form 4240 indicates that the applicant was notified by letter on 15 October 1975 of the FSM’s declination of the SBP; however, a copy of the letter is not available. As a result, the Board recommends that: a....
ARMY | BCMR | CY2012 | 20120022984
This research confirmed that DFAS did not receive an annuity application from her mother or a written claim for the annuity within 6 years of the FSM's death. As such, and only as a matter of equity, the FSM's records should be corrected to show his widow, the applicant's deceased mother, made a timely request for payment of the SBP annuity based on the FSM's death and her request was received and processed by DFAS shortly after the FSM's death. As a result, the Board recommends that all...
ARMY | BCMR | CY2009 | 20090013510
In Part V (SBP Election) on this form, the FSM indicated that he was married and did not have dependent children. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Considering there is evidence to show it was the FSM's intent to provide SBP coverage for the applicant, it would be appropriate, as a matter of...
ARMY | BCMR | CY2007 | 20070016963
Part V (Survivor Benefit Plan Election) of this document essentially shows that he was married to the applicant at the time and that he elected SBP spouse only coverage in the reduced base amount of $363.00 which, at the time, provided for an SBP annuity of $199.65 before taxes. There is no evidence which shows the FSM applied for former spouse SBP coverage for the applicant within 1 year of their divorce. The applicant, the former spouse of an FSM, requests that she be paid an annuity...
ARMY | BCMR | CY2009 | 20090000966
The applicant requests entitlement to the Survivor Benefit Plan (SBP) benefit based on the death of her husband, a former service member (FSM). The evidence of record shows that prior to his retirement, the FSM was provided an opportunity to make an SBP election and that he willingly and in writing, elected not to participate in the SBP. Her concurrence was not required under the law at that time.
ARMY | BCMR | CY2005 | 20050002897C070206
The applicant states that Section 24 of the DA Form 4240 (Data for Payment of Retired Army Personnel) contains a signature which has been forged. She requests that this signature be removed and replaced with a statement indicating that she did not agree with the decision of her deceased husband, a former service member (FSM), to decline SBP. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that the applicant...
ARMY | BCMR | CY2010 | 20100013107
The application for annuity shows that on 1 March 2000 the applicant applied for SBP annuity payments. The evidence of record shows the FSM elected SBP coverage for spouse and children at the time of his retirement on 30 November 1988 and continued to pay SBP premiums until his death. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the applicant applied for an annuity under the SBP on 1 March 2000 and that...
ARMY | BCMR | CY2006 | 20060004182C070205
The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he changed his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage. The applicant states, in effect, that the FSM enrolled in the SBP for spouse coverage at the time of his retirement and continued to pay SBP premiums even after they divorced. As a result, the Board recommends that all Department of the...
ARMY | BCMR | CY2006 | 20060014711C071108
The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he timely elected to change his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage. The applicant provides documentation that shows, in pertinent part, she was married to the FSM for most of his military career, the marriage lasted for nearly 42 years, and she was to be designated as the beneficiary of...
ARMY | BCMR | CY2012 | 20120007567
On 14 May 1996, the applicant and the FSM were divorced. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse coverage at retirement (or during an open-season election prior to his/her divorce), or was still on active duty and had not yet made an SBP election. As a result, the Board recommends that all Department of the Army records of the individual concerned be...