RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060012684 


	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

Mrs. Phyllis M. Perkins 

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Ronald S. Venable 

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 requests, in effect, to receive a refund of all remaining Survivor Benefit Plan (SBP) spouse premiums withheld from his military retired pay after the death of his first wife until SBP coverage was reactivated after his second marriage.   

2.  The applicant states that the Defense Finance and Accounting Service (DFAS) refused to repay him for all spouse SBP premiums withheld from his retired pay. 

3.  The applicant provides a letter from DFAS, three self-authored letters to DFAS, a copy of DFAS-IN Form 20-232 (Designation of Beneficiary Unpaid Retired Pay of Deceased Retired Member), a copy of USAFAC Form 20-245 (Survivor Benefit Plan [SBP] Guidance [Options on Remarriage]), and a copy of USAFAC Form 20-245A (Request for Survivor Benefit Plan [SBP] Election on Remarriage) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 December 1981, the date of death of his first spouse.  The application submitted in this case is dated 14 March 2006.

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 applicant's service personnel records show he accepted a commission in the United States Army Reserve and entered active duty on 1 July 1960.  He later transitioned to the Regular Army.  He retired for length of service on 31 August 1980, in the rank of lieutenant colonel, pay grade of 0-5.




4.  The applicant's record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 28 August 1980.  Item 15b (Spouse and dependent children) of Part IV (Survivor Benefit Plan Election) shows that the applicant elected full spouse and dependent children SBP coverage at the time.

5.  The applicant states in a self-authored letter, dated 20 September 1993, to DFAS that his spouse, S_____ J______, was deceased as of 15 December 1981 and that he was informed that he was due a refund of SBP premiums for those years since his spouse's death.  He further stated that he remarried on 17 April 1993.

6.  On 3 November 1993, the applicant prepared a USAFAC Form 20-245A, electing to resume his existing SBP spouse coverage when he remarried.

7.  The applicant provided a letter from DFAS, dated 7 March 2006, stating that in September 1993 he reported to DFAS the death of his first spouse and based on that notification the applicant's SBP coverage was terminated.  DFAS further stated that the applicant's retired pay was credited for periods that there was no beneficiary.  DFAS continued that the applicant had 6 years from the death of his spouse to present a claim for a full refund, but because of the length of time between the death of his spouse and when he first reported her death to DFAS, his request fell under the statute of limitations.  Therefore, DFAS was going to limit his refund of spouse premiums to six years before he first presented his claim to them.  DFAS also notified him that it was reactivating his spouse coverage.

8.  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. 

9.  Public Law 94-496, enacted 14 October 1976 (but effective 1 October 1976), provided for the suspension of spouse costs if marriage ends in death or divorce.

10.  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 applicant did not properly notify DFAS officials within the 6 years established policy.  However, the applicant's records were readily accessible and the applicant's case was not difficult to prove; therefore, at least one of the reasons behind the barring statute was not of major importance in this case.

2.  As a result, it would be proper and equitable in this case to grant the relief requested and to refund all SBP spouse premiums paid after 15 December 1981, the date of his first spouse's death, until 17 April 1984, the first anniversary of his marriage to his second spouse, when the spouse premiums would resume, less any partial refund for these premiums that DFAS has already paid. 

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 December 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 December 1984.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

 __JTM__  ___LDS__  __RSV__  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 and to excuse failure to timely file.  As a result, the Board recommends that all of the Department of the Army records of the individual concerned be corrected by showing that he notified the appropriate office on 16 December 1981 that his first spouse died and by refunding SBP premiums due him as a result of this correction from 15 December 1981 to 17 April 1994, less any partial refund earlier paid by DFAS.




      __Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012684
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070322
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.