IN THE CASE OF:
BOARD DATE: 15 January 2009
DOCKET NUMBER: AR20080013611
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 the records of her deceased spouse, a former service member (FSM), be corrected to show she timely applied for the annuity from the FSMs Survivor Benefit Plan (SBP) election.
2. The applicant states that she was unaware of any benefits she may have been entitled to upon the death of the FSM.
3. In support of her application, the applicant provides copies of her marriage certificate and the FSM's death certificate. The applicant indicated on her application that she provided a copy of a letter from the Defense Finance and Accounting Service (DFAS) and the FSM's retired pay statement. However, these two items were not attached to the application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 21 December 1970, the FSM enlisted in the Regular Army. He served through a series of reenlistments and attained the rank of first sergeant, pay grade E-8.
3. On 25 August 1990, the applicant and the FSM were married.
4. On 25 July 1991, the FSM completed DA Form 4240 (Data for Payment of Retired Army Personnel). This form lists the applicant as the FSM's wife. The FSM elected a reduced SBP coverage for spouse only. The applicant signed this form indicating that she had been fully informed and counseled concerning the available options and agreed to the election made by the FSM.
5. On 1 September 1991, the FSM was retired due to length of service. He had completed 20 years, 8 months, and 25 days of creditable active duty service.
6. On 8 February 2002, the FSM died.
7. There is no available evidence showing that the applicant applied for an SBP annuity.
8. DFAS records show that the FSM paid an SBP premium at the reduced rate.
9. 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. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce, or annulment.
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 applicant contends that she did not know she was eligible for an SBP annuity until after the 6-year limitation for filing had expired.
2. The evidence clearly shows that the applicant was counseled about SBP options at the time of the FSM's retirement and should have been aware of her annuity benefit upon the death of the FSM.
3. Records show that the FSM paid an SBP premium.
4. The records should be corrected at this time to show that the applicant applied for the SBP annuity in a timely manner and to pay her the annuity, provided she was/is otherwise eligible (e.g., not remarried before age 55), retroactive to the date of the FSMs death.
BOARD VOTE:
____X___ ___X____ ___X___ 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 applied for the SBP annuity in a timely manner and to pay her the annuity, provided she was/is otherwise eligible, retroactive to the date of his death.
_______ _ X _______ ___
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) AR20080013611
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ABCMR Record of Proceedings (cont) AR20080013611
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