IN THE CASE OF:
BOARD DATE: 5 May 2011
DOCKET NUMBER: AR20100025983
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 ex-spouse of a deceased former service member (FSM), requests Survivor Benefit Plan (SBP) benefits for the FSM's son.
2. The applicant states, in effect, she has been working with the Defense Finance and Accounting Service (DFAS) on this issue but she had no idea there was a timeline to apply for the benefits.
3. The applicant provides copies of:
* Email from Casualty Support Section, U.S. Army Human Resources Command, subject: Survivor Benefit Plan, dated 14 July 2009
* Memorandum, U.S. Army Reserve (USAR) Personnel Command, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 10 May 2001
* Letter from USAR Personnel Command, subject: Survivor Benefit Plan Eligibility Information on Member Dying on Active Duty, dated 30 July 2003
* DA Form 1300 (Report of Casualty), dated 20 December 2001
* State of Arizona Certificate of Death, dated 8 December 2001
* Son's New York State Department of Health Certificate of Live Birth, dated 11 August 1994
* U.S. Uniformed Services Identification Card for FSM's son, expired
26 December 2003
CONSIDERATION OF EVIDENCE:
1. The FSM was a sergeant first class in the USAR.
2. On 2 December 2001, Headquarters 98th Division (Institutional Training), issued orders 336-014 directing reassignment of the FSM to USAR Control Group, Active Guard/Reserve (AGR), 1 Reserve Way, St Louis, MO. The reason on the orders is Accession to AGR Status.
3. On 7 December 2001, the FSM died from arteriosclerotic cardiovascular disease. Per regulation, such deaths from natural causes are considered in line of duty. The casualty report (DD Form 1300), shows in item 4f (Duty Status) Active; TDY, AGR 19 November 2001 - 18 November 2004.
4. Public Law 107-107, enacted 28 December 2001, provided expanded benefits under the SBP for the qualified survivors of eligible members who die in the line of duty. These benefits are effective for a death on or after 10 September 2001. A qualified death under the provisions of Title 10, U. S. Code, section 1448(d), as amended by Public Law 107-107, is a death of a member on active duty who died in the line of duty or died not in the line of duty but was retirement eligible.
5. 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, the ex-spouse of a deceased former service member (FSM), requests Survivor Benefit Plan (SBP) benefits for the FSM's son.
2. The available evidence in this case shows the FSM was on active duty when he died. Soldiers who die on active duty in the line of duty are covered by SBP. The evidence further establishes that D _____ P ____ Ashton is the FSM's son.
3. The FSM's ex-spouse states she had no idea there was a timeline to apply for the SBP benefit for the FSM's son.
4. It is also reasonable to presume that had the applicant been aware there was a time limit to making the application for the SBP benefits she would have taken that action in a timely manner. To deny payment of the SBP annuity now would be an injustice.
5. Therefore, it would be appropriate to show the applicant signed and submitted an application (DD Form 2656-7) on behalf of the FSM's son on 28 December 2001, thereby entitling the son 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 28 December 2001 and that they were received and processed by the proper office in a timely manner and
b. paying the FSM's son an annuity retroactive to 8 December 2001, 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) AR20100025983
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