IN THE CASE OF:	

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100021535


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 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 Reserve Component Survivor Benefit Plan (RCSBP).  The applicant further requests entitlement to the Special Survivor Indemnity Allowance (SSIA), a monetary allowance paid to compensate SBP annuitants who have their annuities partially, or wholly, offset by Dependency and Indemnity Compensation (DIC).

2.  The applicant states, in effect, she mailed retirement papers pertaining to the FSM to the U.S. Army Reserve Personnel Command (AR-PERSCOM) on
11 November 2002.  She further states she was informed by her local Department of Veterans Affairs (VA) office that the paperwork should have been mailed to Kentucky [Defense Finance and Accounting Service (DFAS) Retired Pay], and that AR-PERSCOM should have forwarded the papers on her behalf.  She further states she contacted DFAS in February 2009 after the implementation of the SSIA in October 2008, and she was informed that her husband was not in the retirement system.  She finally states she cannot receive the SSIA until this is corrected.

3.  The applicant provides:

* a memorandum to the FSM from the Military Department of Arkansas, Office of The Adjutant General, subject:  Notification of Eligibility for Retired Pay at Age 60, dated 21 March 1988
* 
the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored letter to AR-PERSCOM, dated 27 September 2002, with the following attachments:

* the FSM's State of Arkansas Certificate of Death which shows the informant's name as "B---y M--------n" [the applicant]
* an undated DD Form 2656 (Data for Payment of Retired Personnel) in which the applicant states she receives from the VA a monthly payment of $935.00 for DIC
* a DD Form 108 (Application for Retired Pay Benefits), dated
27 September 2002
* a National Guard Bureau (NGB) Form 23A (Army National Guard (ARNG) Current Annual Statement) and NGB Form 23A1 (ARNG Retirement Points Statement - Supplemental Detailed Report), prepared on 3 October 1996 totaling 5 pages
* a DD Form 1883 (Survivor Benefit Plan Election Certificate), dated
25 June 1988, which shows the FSM enrolled in the RCSBP for spouse and children coverage, full base amount, option C

* a letter from AR-PERSCOM to the applicant, dated 21 October 2002
* a Postal Service (PS) Form 3811 (Domestic Return Receipt), dated
11 November 2002
* a DD Form 1884 (Application for Annuity under the Retired Serviceman's Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP), dated 4 November 2002
* a letter from the applicant to DFAS, dated 25 January 2010
* a letter from DFAS to a member of Congress, dated 29 June 2010
* a letter from a member of Congress to the applicant, dated 16 July 2010
* a letter from the applicant to the Army Review Boards Agency, Support Division, St. Louis, MO, 11 August 2010

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the ARNG in January 1961 and he served through multiple enlistments and reenlistments with the ARNG and the U.S. Army Reserve (USAR).  On 30 September 1976, he enlisted in the Arkansas Army National Guard (ARARNG), where he remained a member until his transfer to the Retired Reserve on 30 September 1996.

2.  On 21 March 1988, the FSM was notified of his eligibility for retired pay at
age 60, commonly known as the 20-year letter.  On 25 June 1988, he enrolled in the RCSBP for spouse and children coverage, full base amount, option C (immediate coverage).

3.  The FSM was born on 7 September 1943, and would have become eligible to receive retired pay, upon application, on 7 September 2003.  However, he died on 10 March 2000 at the age of 56.

4.  On 27 September 2002, the applicant informed AR-PERSCOM, by letter, of her husband's death.  In her letter, she stated she understood that she was not entitled to the SBP annuity, because she receives DIC, but wanted the paperwork on file in case of future law changes. 

5.  On 21 October 2002, AR-PERSCOM informed the applicant they had notified the Director, Retired Pay, DFAS-Cleveland, of the FSM's death.  The letter does not identify whether or not AR-PERSCOM forwarded the FSM's DD Form 1883 to DFAS.

6.  On 4 November 2002, the applicant completed a DD Form 1884, in which she made application for the SBP annuity but also stated she receives monthly DIC, in the amount of $881.00 [now $935.00], from the VA.  In Section C of that form, she signed an affidavit stating she understood that the amount of payable SBP would be offset by the amount of DIC received.  

7.  On 25 January 2010, the applicant inquired, by letter, with DFAS to determine why she was not receiving the SSIA.  On an unknown date in 2010, she asked for assistance from the office of a member of Congress, whose office made an official inquiry on her behalf.

8.  On 29 June 2010, the Deputy Director of Operations, DFAS, responded to the Congressional inquiry by stating:

	a.  The applicant had no reason to follow-up on her [SBP annuity] claim because her monthly entitlement to DIC exceeded the RCSBP entitlement; under these circumstances RCSBP is not payable.

	b.  The applicant did not follow-up on her annuity entitlement until 11 March 2009, in connection with her entitlement to the SSIA.

	c.  Public Law 110-181, section 644, under Title 10, U.S. Code, section 1450(m), amended the SBP and RCSBP to authorize payment of the SSIA to certain surviving spouses whose annuity is either reduced or terminated by DIC payments.

	d.  A surviving spouse, who was entitled to but failed to make a claim for the RCSBP annuity, is ineligible for the SSIA if the statute of limitations for the underlying RCSBP has since expired.

	e.  Pursuant to Title 31, U.S. Code, section 3702(b) [Barring Act], and the decision in the case of Hart v. United States, 910 F.2d 815 (Federal Circuit 1990), the applicant had 6 years from the date of her husband's death to submit a claim for the RCSBP.

	f.  Absent documentation that her claim for the RCSBP was submitted within
6 years of 10 March 2000, the applicant's claim for the SSIA was barred by the statute of limitations.

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.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  

11.  DIC is a survivor benefit, which is administered by the VA.  DIC may be available for surviving spouses who have not remarried, unmarried children under 18, helpless children, those between 18 and 23 if attending a VA-approved school, and to low-income parents of deceased service members or veterans.  

12.  Created by the National Defense Authorization Act for Fiscal Year 2008, section 644, the SSIA is an allowance payable to all SBP/RCSBP annuitants whose annuity has been offset for receipt of DIC from the VA.  

13.  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 the SSIA has been carefully considered and determined to have merit.  The evidence clearly indicates the FSM elected to provide an SBP annuity to his spouse and eligible children in the event of his death.  The FSM's marriage to the applicant is not in question.

2.  The evidence also indicates the applicant informed AR-PERSCOM of her husband's death within the 6-year statute of limitations, acknowledging that while she couldn't receive RCSBP because of her concurrent receipt of DIC in an amount exceeding the amount of her RCSBP annuity, she wanted her paperwork filed on record in the event of future law changes.

3.  It is reasonable to conclude the applicant believed, based on AR-PERSCOM's response to her notification letter that she forwarded to them, that the DD Form 1883 had been forwarded to DFAS.  Had that been the case, her entitlement to SSIA would not be in question.

4.  The SSIA did not take effect until 2008, after the expiration of the applicant's 6-year statute of limitations for filing an RCSBP claim.  The Deputy Director of Operations, DFAS, has acknowledged she had no reason to follow-up with DFAS on their receipt of the DD Form 1883, given that she could not receive the RCSPB annuity.  

5.  Therefore, it would be appropriate to show the applicant submitted a DD Form 1884, within the 6-year prescribed timeframe, thereby entitling her to the SSIA upon its implementation.

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 timely completed and returned a DD Form 1884 and related documents to the proper office on 11 November  2002;

	c.  showing the proper office received and timely processed the DD Form 1884; and

	b.  paying the applicant the SSIA retroactive to its implementation date in 2008.



      ______________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)                                         AR20100021535



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