RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 July 2007
      DOCKET NUMBER:  AR20060013526


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Ms. Ernestine R. Fields           |     |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, entitlement to Survivor Benefit Plan
(SBP) benefits based on the death of her father, a former service member
(FSM).

2.  The applicant states, in effect, her father submitted the appropriate
paperwork but somehow the papers were lost and were not submitted to the
proper office.  She claims that after the death of her father, the local
Retirement Services Office (RSO) contacted her mother to fill out SBP
forms.  These forms were completed and her mother was informed she would
start receiving benefits and be paid retroactively based on the date the
forms were completed.  She then went away to school after the paperwork had
been submitted; however, when she returned from school, she discovered her
mother had never received the benefits.  She states that she contacted the
local RSO and the same routine was followed and they resubmitted the forms.


3.  The applicant further states the Defense Finance and Accounting Service
(DFAS) never informed her mother why she never received the benefit and
there has been no communication with the people responsible for processing
the SBP forms or paying the benefits.  She was informed that after six
years, the SBP claim would be closed.

4.  The applicant provides a self-authored letter and SBP Election Form
(DD Form 1883) in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 June 1994, the date of the FSM's death.  The
application submitted in this case is dated 11 September 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 FSM's record shows that Department of the Army (DA) Letter Orders
Number 2,005,857, dated 1 May 1973, authorized his placement on the Retired
List, in the retired grade of sergeant/E-5 (SGT/E-5) and entitlement to
retired pay, effective 4 May 1972, under the provisions of Title 10 of the
United States Code, Section 1331, then in effect.  A Data for Retired Pay
(DA Form 3713) prepared during the FSM's retirement processing confirms he
completed a total of 20 years of active military service and that he would
be placed on the Retired List in the grade of SGT/E-5, effective 4 March
1972.  A SBP Election Form, dated 5 May 1973, is also on file in the FSM's
record.  This document confirms the FSM elected full Spouse and Children
coverage under the SBP. His wife and daughter (applicant) are listed on the
form.  The applicant's date of birth is 6 December 1955, which would have
made her 18 years of age at the time the form was completed.

4.  On 27 June 1994, the FSM died, and on 3 December 2004, his spouse, the
applicant's mother, died.  The record is void of any documents related to
forms submitted by the FSM's spouse regarding SBP benefits after the FSM's
death.

5.  In connection with the processing of this case, a member of the Board
staff contacted a DFAS SBP official to determine what if any SBP election
had been on file for the FSM.  This official confirmed that SBP election
files are purged three years after the death of a FSM and therefore, there
is no information on the FSM's SBP election in this case.

6.  Public Law 92-425, enacted 21 September 1972, repealed the Retired
Serviceman’s Family Protection Plan and established the SBP.  The SBP
provided that military members on active duty could elect to have their
retired pay reduced to provide for an annuity after death to surviving
dependents.  An election, once made, was irrevocable except in certain
circumstances.  It declared a 12-month Open Season for those members who
retired prior to enactment of the law.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record includes an SBP Election Form completed by the
FSM on 5 May 1973.  However, DFAS SBP election records are only maintained
for three years after a FSM's death.  Therefore, it is not possible to
determine if this SBP election was on file at DFAS at the time of the FSM's
death.  Further, absent DFAS records on any SBP claim made by the deceased
spouse, who would have been the recipient of any authorized SBP annuity in
this case, prior to her death, and given the applicant was well beyond the
age of entitlement for SBP at the time of her father's death, there is an
insufficient evidentiary basis to support payment of an SBP annuity at this
late date.
2.  Even if the applicant could show that her mother never received the SBP
annuity to which she was entitled, the applicant has failed to show she has
proper claim as the beneficiary of her mother's estate.

3.  Records show the alleged error or injustice now under consideration
should have been discovered on 27 June 1994, the date of the FSM's death.
Therefore, the time to file a claim for any error or injustice related to
this issued expired on 26 June 1997.  No claim was filed within the 3-year
statute of limitations and the applicant has failed to provide a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ENA _  __SWF__  __EIF ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                   ____Eric N. Andersen ____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060013526                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1973/03/04                              |
|DISCHARGE AUTHORITY     |10 USC 1331                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]