IN THE CASE OF:	  

	BOARD DATE:	  01 July 2008

	DOCKET NUMBER:  AR20080002360 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be reimbursed for all back Survivor Benefit Program (SBP) payments he has made erroneously. 

2.  The applicant states that he was unaware that he had to suspend his SBP payments when his wife died in 1999 and has continued to pay the premiums.  Accordingly, he desires to have the premiums returned to him.  

3.  The applicant provides a copy of his spouse’s death certificate. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 2 September 1923 and enlisted in the Regular Army on 7 August 1940.  He continued to serve through a series of continuous reenlistments and extensions until he was honorably released from active duty in the pay grade of E-8 on 31 July 1972 and was placed on the Retired List effective 1 August 1972.  He had served 31 years, 5 months and 27 days of total active service.

3.  The death certificate provided by the applicant shows that his spouse passed away on 30 August 1999 at the age of 79.

4.  In the processing of this case a staff member of the Board contacted officials at the Defense Finance and Accounting Service (DFAS) to ascertain the applicant’s current status in regards to SBP payments.  Officials at the DFAS indicate that the applicant originally opted for spouse and child, however, the child has aged out and the applicant is currently paying “Spouse Only” premiums. Additionally, there is no evidence that the applicant’s spouse passed away or that the applicant notified the DFAS of her death.  Officials at the DFAS also stated that upon presentation of a death certificate, the DFAS is only authorized to pay up to 6 years of back premiums under the “Barring Statute.” 

5.  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.

6.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of :  (1) the 360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.

7.  Title 10, U. S. Code, section 1552, the law which provides for the Board, states, “The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.”

8.  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.  Although the applicant has not provided a reasonable explanation as to why he did not notify DFAS officials of the death of his wife approximately 9 years ago, the fact remains that he continued to pay premiums for what appears to be a benefit that no one was eligible to receive in the event of the applicant’s death.   
2.  Therefore, given the applicant’s 30+ years of honorable service during three periods of war (WWII, Korea and Vietnam) and given his advanced age (84), it would be in the interest of justice in this case to reimburse the applicant all SBP premiums he paid since the death of his spouse on 30 August 1999.  

3.  However, the applicant is advised that if he has remarried or if he has a valid SBP beneficiary, he should contact DFAS officials immediately to update his records before he receives the refund of premiums in order to avoid any debt associated with this action.  

BOARD VOTE:

__XXX __  __XXX__  __XXX__   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 notified the DFAS immediately upon his wife’s death.  This correction will render the barring act inapplicable and entitle the applicant to a refund of SBP premiums paid since her death. 



2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during WWII, the Korean War and the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms. 




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080002360





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ABCMR Record of Proceedings (cont)                                         AR20080002360



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