RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 March 2006
      DOCKET NUMBER:  AR20050008789


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce Wright                  |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Jeffrey P.  Parsons           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the son of the deceased former service member (FSM),
through counsel, requests that the FSM’s records be corrected to show that
the FSM’s widow did claim a widow's pension under SBP (Survivor Benefits
Plan) and that the unpaid SBP be released to her estate.

2.  The applicant states that after the FSM's death on 10 November 1998, he
attempted to assist his mother to make a claim for payment.  They went to
see a Navy officer in St. Petersburg, Florida, who directed them to MacDill
Air Force Base, Tampa, Florida.  They later went to MacDill and initially
were seen at the base personnel office.  They were again redirected to the
Base Pass and ID (identification) Section for a DEERS (Defense Enrollment
Eligibility Reporting System) check and re-issuance of a dependent ID card.
 The ID card was issued that day.  At that time, there was no mention of
what they should do after their visit was complete.  His mother received
her ID card and was informed that her paperwork was complete and would be
forwarded.  It is now apparent that they were talking about her paperwork
for her military ID; however, at the time, she and her son thought that the
Pass and ID personnel was talking about her application for SBP.

3.  The applicant states that this assumption was further buttressed by the
fact that his mother started to receive TRICARE benefits.  Subsequently,
his mother began to decline mentally and she was diagnosed as having
dementia, and he assumed even more of her care.  In the Spring of 2004, he
contacted the retired pay office in Ohio in an attempt to see why his
mother was not receiving her SBP benefits.  In May 2004, her health
deteriorated even more precipitously, and he had to take full charge of his
mother.  She died on 3 November 2004, 16 days (sic 7 days) before the
statute of limitations would have expired.

4.  At an earlier time, in 1999, the applicant wrote a letter to the
Retired Pay Operations Center at DFAS (Defense Finance and Accounting
Service), Cleveland, Ohio.  In that letter, he requested assistance
regarding notifications and/or documentation needed to submit upon his
father’s death on behalf of his mother.  The applicant was appointed the
Personal Representative for his mother’s estate by the applicable Florida
probate court.  On behalf of the estate, and because there were still
16 days remaining to apply before she died, the son, as the applicant,
would like to apply for all benefits that were due and owing her, his
mother, the FSM’s spouse, at the time of her death, including the SBP
payments and any monies owed to her or the FSM.



5.  The applicant provides a copy of a USAFSA Form 2621 (SBP Election
Certificate-By Existing Retiree), a copy of Standard Form (SF) 1174 (Claim
for Unpaid Compensation of Deceased Member of the Uniformed Services), a
copy of his mother’s Death Certificate (the FSM’s spouse), a copy of a
Letter of Administration (LOA), a copy of a letter from the applicant to
DFAS, dated 11 July 1999, and several letters from DFAS, in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 November 2004, the date of his mother’s death.  The
application submitted in this case is dated 28 April 2005 but was received
for processing on 16 June 2005.

2.  The FSM’s records show that he was appointed in the New York Army
National Guard (NYARNG) as a second lieutenant on 8 August 1938, with prior
enlisted service in the ARNG.  He was married on 30 June 1946.  He was
promoted to lieutenant colonel (LTC/O-5) effective 16 June 1964.  He
remained in the NYARNG until he was retired by length of service on 19 July
1972 and was placed on the Retired List the same day, in the rank of LTC.
His date of birth (DOB) is 19 July 1912.

3.  The applicant provides a copy of a USAFSA Form 2621, which shows that
the FSM applied for SBP and elected spouse and children coverage on
11 December 1972 under the full amount of retired pay.

4.  On 3 February 1984, the FSM received a letter from DFAS regarding his
current status in the SBP Program.  The letter stated that DFAS records
showed that the FSM elected spouse and child coverage effective 1 January
1973 on full gross retired pay as the base amount.  Through error, the
election was established on
a reduced amount, resulting in an underpayment of cost and creating an
indebted-
ness for the period 1 January 1973 through 31 December 1983, in the
amount of $574.03.  DFAS stated that action had been taken to cancel the
FSM's child(ren) cost retroactive to 1 July 1977.  However, since the
election was established below cost, there was no credit from the
cancellation to apply to the $574.03 debt.

5.  DFAS stated in the letter that the FSM's account had been corrected to
show spouse coverage only, based on full gross retired pay at a monthly
cost of $93.60.  The new cost would be reflected on the FSM's January 1984
retired pay.

6.  DFAS in the letter also stated that effective with his pay for the
month of February 1984, a deduction of $93.60 monthly would be withheld
until the debt was liquidated.  If a deduction in this amount would create
a financial hardship, the FSM was asked to please advise within 30 days of
receipt of this letter so an alternate plan for liquidation of the
indebtedness could be established at the earliest possible date.  If a
reply was not received within the 30-day period, it would be presumed that
the schedule cited above met with the FSM's approval.

7.  The FSM died on 10 November 1998.

8.  On 11 July 1999, the applicant wrote a letter to DFAS, Cleveland
Center, responding to the certificate of eligibility for retired members
sent to his father, the FSM.  He stated that he notified the USA family
support at MacDill in Tampa in November 1998, within a few days of his
father’s death, and they indicated that their office would issue all of the
proper documentation.  He also informed DFAS that they were welcome to
contact him if they had any questions and that their assistance would be
appreciated regarding any other notification and/or documentation needed to
submit upon behalf of his father's estate and/or his surviving spouse.

9.  On 31 August 1999, the DFAS, Cleveland Center, wrote a letter to the
applicant.  DFAS informed the applicant that they had received an
unofficial notice of the death of the FSM.  DFAS stated that if this notice
was correct, to please accept their sincere condolences.  Since they had
not received prior notification of the FSM’s passing, they requested his
assistance in obtaining verification.  DFAS informed the applicant that he
must submit a "Claim for unpaid Compensation" (SF 1174) for any unpaid
retired pay that may have been due on the date of the FSM’s death.
Normally, such amounts involve a partial month’s retired pay.  DFAS also
informed the applicant that the form should be completed and returned to
it, along with a copy of the member’s death certificate.

10.  On 27 September 1999, the applicant applied for unpaid compensation
due at the time of his father's death.

11.  On 5 October 1999, the applicant wrote a letter to DFAS, Cleveland
Center.  He informed DFAS that he notified the family assistance officer
for the US Army at the base in Tampa of his father's death last year [1998]
and was advised that all required departments would be notified.  He also
asked if any adjustments in his father's monthly retirement payment would
be made on the behalf of his mother for her monthly benefits.  He informed
DFAS that several months ago, he forwarded a written request to the US Army
regarding his father's life insurance and at that time, he again inquired
if there was going to be any adjustment of his father's monthly retirement
payment.  He informed DFAS that only 10 monthly retirement payments were
made after the death of his father and their assistance regarding securing
his mother's past, current, and future survivor's monthly benefits would be
greatly appreciated.
12.  The FSM's spouse, the applicant's mother, died on 3 November 2004.

13.  Information by DFAS to a staff member of the Board revealed that their
records failed to show that the FSM's spouse ever received SBP from the
date of the FSM's death to the date of her death.

14.  On 22 December 2004, the applicant received a Letter of Administration
(LOA) from the Circuit Court for Sarasota County, Florida, Probate
Division, in reference to the estate of his mother.  The letter states that
his mother had died on 3 November 2004, owning assets in the State of
Florida, and whereas, the son had been appointed personal representative of
the estate of the decedent and had performed all acts prerequisite to
issuance of LOAs in the estate.  The applicant was found qualified under
the laws of the State of Florida to act as personal representative of the
estate of the deceased, with full power to administer the estate according
to law; to ask, demand, sue for, recover, and receive the property of the
decedent, his mother; to pay the debts of the decedent as far as the assets
of the estate would permit and the law directs; and to make distribution of
the estate according to law.

15.  Public Law 95-397, the Reserve Component Survivor Benefit Plan
(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.  Three
options are available:  (a) elect to decline enrollment and choose at age
60 whether to start SBP participation; (b) elect that a beneficiary receive
an annuity if they die before age 60 but delay payment of it until the date
of the member’s 60th birthday; (c) elect that a beneficiary receive an
annuity immediately upon their death if before age 60.  If death does not
occur before age 60, the RCSBP costs for options B and C are deducted from
the member’s retired pay.  Once a member elects either Options B or C in
any category of coverage, that election is irrevocable.  Option B and C
participants do not make a new SBP election at age 60.  They cannot cancel
SBP participation or change options they had in RCSBP – it automatically
rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a
Reservist Portion cost added to the basic cost of the SBP to cover the
additional benefit and assured protection should the member have died prior
to age 60.

16.  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.

17.  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 evidence of record shows that the FSM applied for SBP and elected
spouse and children coverage on 11 December 1972 under the full amount of
retired pay.  That election was subsequently changed to spouse only
coverage.

2.  The FSM died on 10 November 1998 and the applicant attempted to assist
his mother to make a claim for SBP payment; however, it was never
accomplished.

3.  The applicant's mother's mental health began to decline and he assumed
even more responsibility for her care.  He contacted DFAS in Spring 2004 in
an attempt to see why his mother was not receiving her SBP benefits.  In
May 2004, her health deteriorated even more and he took full charge of her.
 His mother died on 3 November 2004.

4.  The evidence shows that the applicant was appointed as the personal
representative of the estate of his mother and had performed all acts
prerequisite to issuance of the LOA in the estate.  He was provided with
full power to administer her estate according to law.

5.  DFAS revealed evidence that the FSM's spouse never received SBP, which
she was entitled to effective 10 November 1998, the date of the FSM's
death, to 3 November 2004, the date of her death.

6.  The applicant and his mother attempted to resolve her SBP issue within
the
6-year statute of limitations from the date of the FSM’s death on
10 November 1998 to the date of her death on 3 November 2004, 7 days prior
to the ending date for the 6-year statute of limitations.

7.  Therefore, since the evidence clearly shows that the applicant and his
mother made timely attempts to file for SBP, it would be in the interest of
justice for the Board to recommend that the FSM's records be corrected to
show that the FSM's spouse, the applicant’s mother, applied for SBP,
(spousal coverage only, based on full gross retired pay), effective
10 November 1998, the date of the FSM's death, to the date of her death on
3 November 2004.  It would be inequitable to deny the applicant, on behalf
of his mother’s estate, the SBP annuity because of the passage of time.
BOARD VOTE:

___JPP _  ___EM__  __JI ____  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 that the applicant and his mother (the FSM’s spouse) timely applied
for SBP and that the son, who is court appointed as the personal
representative for the estate of the FSM’s now deceased spouse, be paid the
annuity based on the FSM's election to participate in SBP, spousal coverage
only, based on full gross retired pay, from the FSM’s death on 10 November
1998, to the date of death of the FSM’s spouse, the applicant's mother, on
3 November 2004.




                                  _____John Infante_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008789                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060323                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19710719                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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