IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100018294 


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 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).  She requests the SBP annuity be paid to her retroactive to 2004 when the FSM died.

2.  The applicant states, in effect, she notified the Defense Finance and Accounting Service (DFAS) of her husband's death in March 2004 and received a reply from DFAS instructing her how to apply for the FSM's unpaid retired pay.  She states she did not realize there were additional documents to complete to receive the SBP annuity.  She also states she is requesting waiver of the Barring Act which requires that her application be submitted within 6 years of the event leading to the claim.  She concludes by stating she was unaware she was not receiving the SBP annuity because of her health limitations following a previous brain hemorrhage (stroke).

3.  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)
* marriage license between the applicant and FSM
* FSM's certificate of death
* FSM's retiree account statement
* DFAS letter, dated 15 March 2004
* personal statement from applicant
* personal statement from Mrs. T____ R____, daughter of the applicant and FSM
* medical documentation pertaining to the applicant
* extract of Title 31, U.S. Code, section 3702 (Authority to Settle Claims)

CONSIDERATION OF EVIDENCE:

1.  The FSM served on active duty as a commissioned officer of the U.S. Army Reserve from 6 July 1969 to 30 September 1981.  He served 7 years, 9 months, and 22 days of active enlisted and warrant officer service prior to his entry on active duty during this period.

2.  On 4 August 1981, the FSM completed a DA Form 4240.  This form shows he made an election to participate in the SBP and elected "spouse and dependent children" coverage based on the full amount of retired pay.

3.  On 30 September 1981, he was separated under the provisions of Title 10, U.S. Code, section 3911 (Required Service for Retirement), and transferred to the U.S. Army Reserve Control Group (Retired).  His DD Form 214 shows he was credited with 20 years and 17 days of total active service at the time of his retirement.

4.  On 3 March 2004, the FSM died from cardio respiratory arrest as a result of metastatic large cell carcinoma of the lung (lung cancer).  He was 62 years of age at the time of his death.

5.  On 23 May 2010, the applicant submitted a DD Form 2656-7 to DFAS requesting verification of her entitlement to the SBP.  On 7 June 2010, DFAS denied her request, stating it was not in compliance with the filing provisions stipulated in Title 31, U.S. Code, which specifically require the receipt of SBP claims by DFAS within 6 years of the date of death.

6.  The applicant provides:

	a.  a copy of her marriage license from the State of Montana, showing she and the FSM were married on 6 July 1960;

	b.  a copy of the FSM's certificate of death from the State of Arizona showing the FSM was married at the time of his death;

	c.  a copy of the FSM's retiree account statement for 1 August 2003 showing a deduction for "SBP Costs" in the amount of "$147.83" and listing his SBP coverage type as "spouse only."  At the time of the FSM's death, his daughter and son were 42 and 41 years of age, respectively.

	d.  personal statements from herself and her daughter alluding to the applicant's complete dependence on the FSM following a stroke she suffered at the age of 34.  The applicant states the FSM took very good care of her while he was alive and told her several times she would be taken care of after his death because he had taken steps to ensure she received his pension, social security income, and SBP benefits.

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 death to surviving dependents.

8.  Title 31, U.S. Code, section 3702, also known as the Barring Act, prohibits the payment of a claim against the U.S. 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, 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's request for correction of her deceased husband's record to enable her to collect an SBP annuity has been carefully considered and is determined to have merit.  The evidence clearly indicates the FSM elected to provide an immediate SBP annuity to his spouse and eligible children in the event of his death.

2.  The evidence in this case confirms the FSM's SBP election and his payment of the SBP until his death.  The FSM's marriage to the applicant is not in question.

3.  It is reasonable to conclude the applicant may have believed her SBP annuity was "taken care of" based on her discussions with the FSM prior to his death.  The fact that she was in receipt of other annuities after her husband's death, coupled with her own poor health, apparently led to some confusion on her part as to what she was receiving.  Only recently did she learn she was not being paid the SBP annuity.

4.  It is also reasonable to presume that had the applicant been aware she had to complete additional documents in order to receive her SBP annuity, she would have made application immediately.  To deny her the SBP annuity now would be an injustice.

5.  Therefore, it would be appropriate to show the applicant submitted a DD Form 2656-7 on 4 March 2004, thereby entitling her to the SBP annuity.

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 by corrected by:

	a.  showing the applicant completed and returned a DD Form 2656-7 and related documents to the proper office on 4 March 2004 and that they were received and processed by the proper office in a timely manner and

	b.  paying the applicant an annuity retroactive to 4 March 2004, 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)                                         AR20090016057



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ABCMR Record of Proceedings (cont)                                         AR20100018294



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