BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013107 


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 widow of a former service member (FSM), requests annuity payments under the Survivor Benefit Plan (SBP).

2.  She states the FSM elected SBP coverage upon his retirement and the premiums were deducted from his retirement pay as verified in his Retiree Account Statements (RAS).  She adds she applied for Dependency and Indemnity Compensation (DIC) upon the FSM's death on 22 November 1998, but was denied.  In March 2000, the applicant states she applied for SBP annuity payments, but failed to follow-up on her application.  The applicant maintains she contacted the Defense Finance and Accounting Service (DFAS) after being advised by her financial advisor and was told that no application was found concerning her request for SBP annuity payments and she would have to contact the Army Board of Correction of Military Records to approve her request due to the elapsed time of 10 years.

3.  She provides the following:

* Self-authored statement, dated 24 March 2010
* RAS, dated 5 December 1997
* Certificate of Death
* Department of Veterans Affairs (VA) letter, dated 29 December 1998
* DD Form 1884 (Application for Annuity), dated 1 March 2000
* Orders S137-12, dated 18 July 1988
* DD Form 214, dated 30 November 1988
* DA Form 3713 (Data for Retired Pay), dated 5 October 1988
* DA Form 4240 (Data for Payment of Retired Army Personnel), dated 
   4 October 1988
* FORSCOM Form 1004-1-R (Statement of Service Member's Survivor Benefit Plan Counseling), dated 16 October 1988

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 FSM's records show he was appointed as a second lieutenant in the Regular Army on 12 August 1968 and entered active duty on 20 November 1968. The FSM was honorably retired for length of service on 30 November 1988 in the rank/grade of major/O-4 after completing 20 years and 11 days of active service.

3.  On 4 October 1988, the FSM completed a DA Form 4240.  Part III (Survivor Benefit Plan Election) of this form shows he was married to the applicant, had two dependent children, and he requested full SBP coverage for spouse and dependent children.  Part VII (SBP Certification) shows the FSM signed the document.

4.  FORSCOM Form 1004-1-R shows that on 16 October 1988 the FSM was counseled on the SBP.

5.  The FSM's RAS shows a deduction of $146.09 for SBP costs.

6.  County of Solano, Certificate of Death, shows the FSM died on 22 November 1998 and he was married to the applicant at the time of his death.  

7.  The letter from VA shows the applicant was authorized payment of $300.00 for burial allowance and $150.00 for plot or interment allowance.

8.  The application for annuity shows that on 1 March 2000 the applicant applied for SBP annuity payments.  She listed three eligible children of the FSM.  There is no indication that this form was received and/or processed by DFAS.

9.  The General Processing Branch, DFAS, Cleveland, Ohio, was asked to verify information relevant to the FSM's SBP.  DFAS confirmed that the FSM paid SBP spouse and children premiums until his death.  DFAS had no record of the applicant's SBP application and, therefore, no SBP annuity was paid.

10.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

11.  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.

12.  Title 38, U.S. Code, section 1311, states that DIC is an entitlement from the Department of Veterans Affairs paid to eligible survivors of the following:

   a.  Military service member who died while on active duty; 

   b.  Veteran whose death resulted from a service-related injury or disease; or
   
   c.  Veteran whose death resulted from a non service-related injury or disease, and who was receiving, or was entitled to receive, VA Compensation for service-connected disability that was rated as totally disabling for at least 10 years immediately before death or since the veteran's release from active duty and for at least five years immediately preceding death.
   
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected SBP coverage for spouse and children at the time of his retirement on 30 November 1988 and continued to pay SBP premiums until his death.  

2.  The applicant maintains she applied for SBP annuity payments, but failed to follow-up on her application.  DFAS stated there was no record of the applicant's SBP application and, therefore, no SBP annuity was paid.  Considering the facts in this case, it would be appropriate, as a matter of fairness and equity, to correct the FSM's records to show that she applied for annuity payment under the SBP on 1 March 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:

	a.  showing the applicant applied for an annuity under the SBP on 1 March 2000 and that the request was received and processed by the appropriate office in a timely manner and

	b.  paying the applicant the SBP annuity retroactive to the day after the FSM's 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)                                         AR20100013107





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ABCMR Record of Proceedings (cont)                                         AR20100013107



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