IN THE CASE OF:
BOARD DATE: 16 December 2008
DOCKET NUMBER: AR20080014889
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, the former spouse of a retired, deceased former service member (FSM), requests that she be entitled to his Survivor Benefit Plan (SBP) annuity payment from the date of his death on 29 April 2000.
2. The applicant states that when her husband, the FSM, died she had major health problems and moved to California. She moved back to Pennsylvania in February 2008 and discovered she was entitled to SBP. However, Defense Finance and Accounting Service (DFAS) denied her SBP based on the Barring Statute.
3. The applicant provides a copy of the FSM's death certificate; a copy of their marriage certificate; a copy of the FSM's December 1999 Retiree Account Statement; and a copy of the DFAS denial of SBP benefits.
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. The FSM was born on 21 July 1933.
3. On 31 July 1981, the FSM retired from the Regular Army. A review of his properly executed DA Form 4240 (Data for Payment of Retired Army Personnel) shows that he elected not to participate in the SBP because he was not married.
4. On 28 October 1996, the FSM and the applicant were married in the State of Pennsylvania. DFAS confirms in its letter to the applicant that the FSM timely elected to participate in the SBP after the marriage and notified DFAS on
7 November 1996 of his marriage to the applicant. A review of the FSM's December 1999 Retiree Account Statement shows he made SBP payments until his death.
5. On 29 April 2000, the FSM died. The applicant is shown as the widow on the death certificate.
6. In response to the applicant's request for SBP benefits, DFAS advised her that due to the Barring Statute, no annuity payment could be made to her because she did not apply for the annuity within 6 years of the FSM's death.
7. 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 their death for surviving dependents.
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. The applicant and the FSM were married on 28 October 1996. The FSM timely filed an SBP election on behalf of the applicant within a year of the marriage. The FSM made SBP monthly payments until his death on 29 April 2000.
2. Although the applicant is entitled to the SBP annuity payment, DFAS denied her payments based on the Barring Statute. The applicant contends that due to poor health at the time of her husband's death she moved to California and was unaware of her SBP entitlement until 2008 when she discovered the FSM's retired payment accounts on her return to Pennsylvania. It appears that she was unaware of his SBP election prior to 2008 and did not realize she was entitled to an annuity beginning the day after her husband's death. There is no evidence whether she was briefed on her entitlements at the time of her husband's death.
3. The FSM earned a retirement and he timely elected SBP spousal coverage within one year of his marriage. He made monthly SBP payments from his retired pay until his death. The Government has access to all records necessary to establish applicant's entitlement and is therefore not disadvantaged by the delay in the applicant's request. Thus, there is no need to invoke the barring statute.
4. Based on the above, it would be in the interest of justice to grant the applicant's request by showing the applicant timely filed for the SBP benefit upon the death of the FSM, and paying her all monies to which she is entitled since the day after the FSM's death on 29 April 2000.
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 the applicant applied for the SBP annuity on 30 April 2000, that it was
processed in a timely manner and that she be paid the SBP annuity retroactive to the day following the day of the FSM's death.
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) AR20080014889
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080014889
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120009349
The applicant, after a telephone conversation with the case analyst of record, states: * Her deceased husband, the FSM, was previously married to Ferxxxxxx but they were divorced on 16 September 1976 * Their divorce decree stated she (Ferxxxxxx) would receive a portion of the FSM's retired pay * The FSM's former spouse, Ferxxxxxx, died on 23 December 2000 but she (the applicant) was not aware of her death until recently * She filed a claim with the Defense Finance and Accounting Service...
ARMY | BCMR | CY2011 | 20120000633
IN THE CASE OF: BOARD DATE: 19 July 2012 DOCKET NUMBER: AR20120000633 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. The evidence of...
ARMY | BCMR | CY2010 | 20100018294
The applicant, the spouse of a deceased former service member (FSM), requests correction of her deceased husband's record to show she made a timely application for an annuity under the Survivor Benefit Plan (SBP). The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 1981 * DD Form 2656-7 (Verification for Survivor Annuity) * DFAS letter, dated 7 June 2010 * DA Form 4240 (Data for Payment of Retired Army Personnel) *...
ARMY | BCMR | CY2009 | 20090002143
The applicant married the FSM in "1995," but he did not inform DFAS within a year of the marriage, so the applicant was not eligible. DFAS issued the applicant two payments which were later collected because she was not entitled to an SBP annuity because the FSM was not married at the time of his retirement and had not elected coverage for her within one year of their marriage. As a result, the Board recommends that all Department of the Army records of the FSM be corrected by showing that...
ARMY | BCMR | CY2012 | 20120000030
He elected participation in the Reserve Component SBP (RCSBP) for spouse only coverage based on the full amount under Option C (Immediate coverage). On 15 August 2011, by letter, a DFAS official notified the applicant's Member of Congress that: * Entitlement to retired pay terminates on the date of the retiree's death * The Arrears of Pay (AOP) include unencumbered amounts due to the deceased member * An amount of $752.40 was mailed to the applicant on 1 September 2010 for his AOP from 1 to...
ARMY | BCMR | CY2009 | 20090007029
The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show that she applied in a timely manner to receive payment of her Survivor Benefit Plan (SBP) annuity. The applicant provides the following documents in support of her application: a. a State of Vermont Certification of Marriage that shows the FSM and the applicant were married on 22 March 1975. b. a State of Vermont Certificate of Death that shows the FSM died on 17 October 1996...
ARMY | BCMR | CY2013 | 20130015297
A letter, dated 20 October 2000, wherein the ALARNG State Military Department provided her a DD Form 1998 (Application for Annuity) to complete and file for compensation. The applicant stated she submitted a request for an SBP annuity as early as 2000 and the HRC letter, dated 14 November 2000, notified her of the receipt of her claim. That letter does not indicate she was advised of entitlement to an RCSBP or SBP annuity starting at age 60.
ARMY | BCMR | CY2014 | 20140013131
On 2 June 2003, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). Public Law 106-398, 30 October 2000, required that upon receipt of that letter, a qualified RC member, who was married, would automatically be enrolled in the RCSBP under option C, spouse and child(ren) coverage based on full retired pay, unless different coverage was selected within 90 days of receipt of that letter. As a result, the Board recommends that all Department of the Army...
ARMY | BCMR | CY2014 | 20140000840
The applicant, the widow of a deceased former service member (FSM), requests, in effect, correction of the FSM's record to show she filed a claim for a survivor benefit annuity on the day following the FSM's death and payment of unpaid benefits from that date. She only got her identification card in 2003 when she was advised of her benefits by the Army National Guard (ARNG) at which time the FSM's military records still showed him as alive and married to his former spouse. The applicant...
ARMY | BCMR | CY2014 | 20140012611
The applicant states: * the FSM died on 1 February 2013; he had paid into the SBP for his mentally handicapped son for 30 years * before his death, he appointed his daughter Victoria as his surrogate (a person in charge of probate, inheritance, and guardianship) * the handicapped son began receiving monthly annuity payments in August 2013 but those payments suddenly stopped in November 2013 * when payments stopped, officials at the Defense Finance and Accounting Service (DFAS) demanded...