BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090012469 


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:

The applicant defers her request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant, the wife of a deceased former service member (FSM), receive an annuity under the Survivor Benefits Plan (SBP).

2.  Counsel states the applicant was confused as to the different steps needed to receive benefits under both the Reserve Component (RC) SBP and the Death and Indemnity (DIC) program.  She contacted the Defense Finance and Accounting Service (DFAS) by electronic mail (email) requesting clarification and guidance regarding SBP versus DIC.  No reply to this inquiry was made until 12 May 2009 when DFAS stated in a letter that the email did not constitute a valid clam and that since the FSM had passed away over 6 years earlier, the statute of limitations nullified her claim.

3.  Counsel contends that the applicant had put DFAS on notice with her 14 February 2007 email requesting assistance and direction and it was the onus of DFAS to respond in a timely manner.  If the responsibility to know the proper procedures was solely on the claiming party, it would grant DFAS a method to avoid paying claims by avoiding responding to any inquiry until after the limitations period expired.
 
4.  Counsel provides copies of the 12 May 2009 DFAS letter and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 9 February 1949.  He was inducted into the Army of the United States on 25 March 1969 and served on active duty through 16 March 1971.  He was transferred to the U.S. Army Reserve to complete his period of obligated service through 24 March 1975.  Following a 2-month break in service, the FSM enlisted in the Army National Guard (ARNG) on 17 May 1975 and, with the exception of a 281-day period of mobilization, served in this capacity until he retired on 19 October 1995.

2.  The Georgia ARNG sent the applicant an undated Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

3.  On 12 October 1994, the FSM completed a DD Form 1883 (SBP Election Certificate).  He elected full spouse and children coverage under option C, immediate coverage.

4.  The FSM passed away on 30 May 2002.

5.  The FSM's 30 June 1995 retirement order is the last document in the paper copy of the FSM's official military personnel file.  None of his personnel records were transferred to the integrated Personnel Electronic Records Management System (iPERMS) and the earliest entry in the transactions section of iPERMS is the initiation of a notice of death verification entry dated 27 October 2008.  This note indicates the Social Security Administration verified his death.

6.  The first specific reference in the Army records to a claim for RCSBP is dated 12 February 2009 when the applicant asked when her annuity would start.

7.  On 12 May 2009, DFAS notified the applicant that her 14 February 2007 email was not sufficient to constitute a claim for an RCSBP annuity.  It is stated that Title 31, U.S. Code, limits the time for filing claims against the United States to 6 years.  Due to the fact that they did not receive her application for RCSBP within 6 years of her husband's death, they were denying her application for an annuity.  A copy of the email cited is not of record.

8.  Title 31, U.S. Code, section 3702(a)(1)(A), states that the Secretary of Defense shall settle claims involving uniformed service members' pay, allowances, travel, transportation, payments for unused accrued leave, retired pay, and survivor benefits.

9.  Title 31, U.S. Code, section 3702, further states a claim must be received by the official responsible within 6 years after the claim accrues.  A claim that is not received in the time required under this section shall be returned with a copy of this section and no further communication is required.

10.  SBP and RCSBP provide that military members can elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 
Under RCSBP, members of the National Guard and Reserve who are notified that they have attained 20 years of satisfactory Federal service creditable toward entitlement to retired pay at age 60 have three options for providing financial protection for their survivors.  The survivor may be the spouse, former spouse, dependent children, or a person with an insurable interest in the member.  The RCSBP doesn't make a single, lump-sum payment like insurance; instead RCSBP pays benefits to eligible survivors each and every month.

DISCUSSION AND CONCLUSIONS:

1.  On the applicant's behalf, counsel contends that the applicant had put DFAS on notice with her 14 February 2007 email requesting assistance and direction and it was the onus of DFAS to respond in a timely manner.

2.  Counsel indicates the applicant was and/or is in receipt of DIC and Army records show that the Social Security Administration verified his death.  This means the government knew that the FSM had passed away well before the applicant is shown to have first inquired as to when she would start receiving SBP.

3.  The FSM would have started receiving retired pay effective upon his attaining age 60 on 9 February 2009.  Although the applicant may have been confused about the start date of her RCSBP or SBP annuity, she made an inquiry regarding her entitlement less than 6 years after the FSM's death.  DFAS failed to respond until 2 years later.

4.  The applicant is being barred from entitlement to and receipt of an RCSBP annuity under the interpretation of Title 31, U.S. Code, section 3702, that she loses her entitlement to RCSBP because she did not apply within 6 years of the FSM's death.

5.  The applicant is entitled to RCSBP based on the FSM's entitlement to retired pay and his election of immediate coverage upon his death irrespective of when she applies.  DFAS had a duty to respond within a reasonable time frame.  Had DFAS done so, the applicant could have perfected her claim within the prescribed time limit.

6.  Therefore, it is appropriate as a matter of equity to correct the record to show that the applicant made a proper claim for RCSBP benefits at the time of the FSM's death and her claim was accepted and processed.

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 filed a claim for RCSBP at the time of the FSM's death which DFAS timely accepted and processed.



      _____________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)                                         AR20090012469



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ABCMR Record of Proceedings (cont)                                         AR20090012469



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