RECORD OF PROCEEDINGS


	IN THE CASE OF:   


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20060017121


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn II

Member

Mr. Michael J. Flynn

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 widow of the deceased former service member (FSM), requests, in effect, correction of the FSM’s military records to show that he elected full Survivor Benefit Plan (SBP) coverage for his spouse and child, and that the applicant applied for the SBP annuity within the 6-year statute of limitations.

2.  The applicant states, in effect, that the FSM passed away on 10 July 1999, but she was not notified by the Defense Finance and Accounting Service (DFAS) of her eligibility for SBP until 13 September 2005.  She filed a claim at that time.

3.  The applicant provides a copy of a letter from DFAS with enclosures, retirement orders, death certificate, marriage certificate, and birth certificate. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 10 July 1999, the date of the FSM’s death.  The application submitted in this case is dated 27 November 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 military records are not available for review.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 

4.  Orders P-10-304778, United States Army Reserve Personnel Center, dated 20 October 1992, placed the FSM on the Retired List, in the rank of sergeant, pay grade E5, effective 12 October 1991.

5.  Certificate of Death, issued by the Department of Health, Puerto Rico, dated 
9 August 2005, shows that the FSM died on 10 July 1999, in Puerto Rico.  It also shows he was married to the applicant at the time.

6.  On 24 October 2005, a Military Pay Technician, Retired Pay Operations, DFAS, wrote a letter to the applicant, stating that a claim against the Government must be filed within 6 years of the date that the claim first accrued.  It further stated that if the widow does not file an annuity claim within 6 years of the death of the retiree, the annuitant completely loses her right to this benefit.  The DFAS records indicated that no correspondence had been received since 10 July 1999 in regards to an SBP annuity.  Based on this information and the 6-year barring statute, any application for SBP would be denied.

7.  On 27 April 2007, the Senior Associate Counsel, DFAS, wrote a memorandum regarding the annuity claim of the applicant.  He stated, in effect, that on 6 November 1991 and again on 2 July 1992, the FSM had submitted a valid SBP election for full spouse and child coverage.  However, for whatever reason, DFAS failed to enter this SBP coverage on the FSM’s retired account.  Therefore, at the time of the FSM’s death, DFAS did not send an annuity application to the surviving spouse.  Counsel further stated that in light of this finding, DFAS should correct the member’s retired pay account to reflect that the FSM elected full spouse and child coverage at retirement.  Counsel stated that the applicant’s claim was received on 27 September 2005, more than 2 months beyond the 6-year statute of limitations for a valid annuity application.

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election must be made before the effective date of retirement or else coverage defaults to automatic spouse coverage.  

9.  Title 31 U. S. Code, section 3702, also known as the Barring Act, 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 clearly shows that the FSM had elected full SBP coverage for his spouse and child at the time of his retirement, but that DFAS failed to properly record his election on his retired pay account.

2.  The applicant did not receive notification from DFAS at the time of the FSM’s death.   She learned of her entitlement on 13 September 2005 and filed a claim within 2 weeks.  Since her claim was submitted beyond the 6-year statute of limitations, DFAS is barred from honoring her claim.  

3.  In view of the above, it would be equitable to correct the FSM’s records to show that the FSM elected full SBP coverage for his spouse and child; that the applicant made a request for SBP within the 6-year statute of limitations; that she be paid an SBP annuity.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 July 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
9 July 2002.  The applicant did not file within the ABCMR 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__JTM __  __MJF __  __RJO      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 Department of the Army records of the individual concerned be corrected by:

a.   showing that the FSM elected full SBP coverage for his spouse and child at the time of his retirement;

b.  showing that the FSM’s spouse was properly notified and filed a claim for SBP annuity on 11 July 1999; and

c.  paying the FSM’s spouse and child the appropriate SBP annuity effective from the time of the FSM’s death, less the costs for uncollected premiums.





___    John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR20060017121
SUFFIX

RECON
 
DATE BOARDED
20070719 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
137.0400
2.

3.

4.

5.

6.