IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100022764 


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 requests a waiver of the Barring Act and payment of the Survivor Benefit Plan (SBP) annuity she is due based on the death of her husband, a former service member (FSM).  

2.  The applicant states she was denied survivor benefits by the Defense Finance and Accounting Service (DFAS) based on the Barring Act.  She claims the representative of the government made an error that should be acknowledged and the record should be corrected by waiving the Barring Act.  She states in January 1992, at the time of her husband's death, her Casualty Assistance Officer (CAO) misinformed her she was eligible for Dependency and Indemnity Compensation (DIC) or Reserve Component Survivor Benefit Plan (RCSBP) benefits but not both.  She states when she became aware she could have received both, she applied and was informed by DFAS that the Barring Act prohibited her from receiving the entitlement.  She claims the Barring Act should not apply due to the fact she was misinformed and there should be no limitation placed on her benefits because an error was made by a government representative.  

3.  The applicant provides the following documents in support of her application:

* Headquarters, Maine National Guard (MEARNG) Memorandum of Record (MOR), Subject: DIC, dated 28 January 1992
* DFAS letters, 19 December 2007 and 15 October 2009
* Joint Forces Headquarters, MEARNG, DCSPER-RPAM, Memorandum, Subject: Verification for Survivor Annuity (DD Form 2656-7) with Supporting Documentation, dated 11 December 2007 
* DD Form 2656-7, dated 11 December 2007
* Army Board for Correction of Military Records (ABCMR) Letter, dated 
6 November 2008
* Self-authored letter to Member of Congress, dated 22 June 2009
* DA Form 751 (Telephone or Verbal Conversation Record), dated 
26 May 1992
* VA Form 20-8993 (DIC Claim Approval), dated 25 March 1992
* DD Form 1300 (Report of Casualty), dated 14 February 1992
* DD Form 1375 (Request for Funeral and/or Interment Expenses), dated 10 February 1992
* DD Form 397 (Claim Certification and Voucher for Death Gratuity Payment), dated 30 January 1992
* Adjutant General (AG) Message 9, Subject: Authorization for Death Gratuity Payment), dated 30 January 1992
* MEARNG, MOR, dated 29 January 1992
* FSM's Death Certificate
* NGB Form 23D (Notification of Eligibility for Retired Pay), dated 
24 January 1992
* DD Form 1883 (SBP Election Certificate), dated 9 February 1989
* Congressional Inquiry, dated 19 August 2010.  

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 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 record contains a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) issued by the MEARNG, dated 24 January 1989, that notified the FSM he had completed the required years of service necessary to be eligible for retired pay upon application at age 60.  

3.  The record also contains a DD Form 1883 the FSM completed in which he elected full "Spouse and Children" SBP coverage, option C.  The FSM and applicant signed this form on 4 February 1989, and the FSM and a witness authenticated the form with their signature on 9 February 1989.   

4.  On 28 January 1992, while serving on active duty in an Active Guard Reserve (AGR) status, the FSM died.

5.  On 28 January 1992, an MEARNG retirement services counselor completed an MOR indicating the applicant had to choose whether she wanted to receive a DIC annuity or RCSBP annuity.   The MOR also shows that on 29 January 1992 the applicant opted for DIC.

6.  On 11 December 2007, the MEARNG submitted a memorandum to DFAS requesting that the applicant be granted RCSBP benefits.  It confirmed the applicant had been misinformed regarding her eligibility for both DIC and RCSBP benefits; she was given the option of electing only one.  

7.  On 19 December 2007, DFAS informed the applicant her request for RCSBP benefits was being denied based on the Barring Statute because her claim had not been submitted within 6 years of the FSM's death.  

8.  On 8 November 2008, the ABCMR informed the applicant, under the provisions of the governing law, Public Law 92-425, enacted on 
21 September 1972, the surviving spouse and children of a member who dies on active duty after becoming eligible for military retired pay are automatically entitled to an SBP annuity.  It also indicated that the law also provided that if an active duty service member dies after becoming eligible for retired pay, but before its award, an annuity is payable to the eligible spouse in an amount equal to the difference between any DIC paid by the VA (Department of Veterans Affairs) and 55 percent of what military pay would have been on the date of death. 

9.  The ABCMR also indicated that the Army liaison at DFAS verified and indicated the applicant was entitled to apply for SBP under the provisions of Public Law 110-181, enacted 1 October 2008 which states, surviving spouses whose SBP payments have been offset (partially or totally) as a result of receiving DIC, including surviving spouses whose members died on active duty, are eligible for Special Survivor Indemnity Allowances (SSIA).  The DFAS liaison indicated the applicant should submit all paperwork related to the claim to the U.S. Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis), ATTN: AHRC-PAP-T.  The applicant was also advised if her claim was not resolved administratively, she could reapply to the Board.  
10.  On 15 October 2009, the DFAS, Deputy Director, Operations, responded to an inquiry from a Member of Congress made on behalf of the applicant regarding her claim for RCSBP benefits.  This DFAS official informed the Member of Congress that the DFAS Office of General Counsel (OGC) reviewed the denial of the applicant's claims and confirmed the applicant is not entitled to receive RCSBP because she did not file a claim for benefits within 6 years of her husband's death.  As a result, OGC determined her claim was barred by the applicable statute of limitations set forth in Title 31 of the U.S. Code, Section 3702 (The Barring Act).  

11.  The DFAS Deputy Director confirmed the applicant had been incorrectly advised regarding her entitlement to receive RCSBP benefits on more than one occasion.  Their records revealed after her husband's death the Army CAO incorrectly told the applicant she could apply either for RCSBP or DIC, but not for both.  As a result of this advice, the applicant apparently submitted an application for DIC, but did not submit a claim for RCSBP benefits, although she would have been entitled to receive a small SBP annuity in addition to her DIC benefit.  He further indicated the advice of the DFAS Army Liaison to the ABCMR in 2008 that the applicant could apply for SBP benefits under the provisions of 10 USC 1450(m), which became effective 1 October 2008, was also erroneous.  

12.  The DFAS Deputy Director finally informed the Member of Congress that although DFAS does not have the legal authority to honor the applicant's SBP application, the ABCMR does have the authority to reconsider her request for correction of military records.  

13.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  All active duty military members are covered by SBP automatically at no cost.

14.  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's contention that the Barring Act should be waived based on her being improperly advised regarding her eligibility for SBP at the time of her husband's death has been carefully considered and found to have merit.  

2.  By law, SBP annuities are authorized for the surviving spouse of a member who dies on active duty after becoming eligible for retired pay, but before its award and an annuity is payable to the eligible spouse in an amount equal to the difference between any DIC paid by the VA and 55 percent of military pay on the date of death.

3.  The evidence of record confirms the applicant was improperly denied SBP annuity benefits as a result of erroneous counseling by her CAO and improper processing of her benefits by the at the time of her husband's death.  

4.  The record further shows DFAS denied the applicant SBP benefits based on the Barring Act even though DFAS confirmed she was eligible for the benefits.  Therefore, given the applicant was erroneously counseled which resulted in her being denied the opportunity to apply for SBP benefits at the time of her husband's death, it would be appropriate and serve the interest of justice to correct the record to show the applicant applied for SBP benefits upon the death of her husband and that this application was approved.  Further, the applicant should be provided all back RCSBP benefits due since the date of her husband's death. 

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 properly applied for RCSBP benefits upon the death of her husband on 28 January 1992; and providing her all back RCSBP payments and SSIA due since the date of her husband's death through the present.  




      ___________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)                                         AR20100022764



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ABCMR Record of Proceedings (cont)                                         AR20100022764



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