IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110000905 


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, in effect, that she be provided a Survivor Benefit Plan (SBP) annuity after offsetting any erroneous payments she received from September 1998 to August 2004. 

2.  She states her husband died on 28 September 1998 and his death was not properly reported to the Defense Finance and Accounting Service (DFAS) office until June 2010.  As a result, she continued to receive his full retired pay for approximately 6 years after his death.

3.  She contends she has not received a payment of any type (SBP included) since August 2004.  She believes that any monies she received in the form of his retired pay should be offset by non-receipt of her SBP entitlements beginning in August 2004.

4.  She states that due to a recent illness and loss of her job, she currently has no income and is in dire need of her SBP benefits.     

5.  She provided:

* The FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A page from the National Archives and Records Administration
* A certificate of death
* The FSM’s Retiree Account Statement (RAS)
* A self-authored letter

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.  On 30 April 1992, the FSM retired, in the grade Master Sergeant (MSG)/E-8, after completing 20 years and 4 days of active military service.  

3.  The FSM’s record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 4 February 1992, which he completed during his retirement processing.  Part V (SBP Election), item 15, shows he elected spouse and dependent children SBP coverage, and item 16 shows he chose to provide the full amount of coverage. 

4.  The applicant provided a copy of the FSM’s death certificate which shows he died on 27 September 1998.

5.  She also provided a copy of the FSM’s RAS, dated 3 December 2002.  This also shows the following:

* SBP Coverage Type – Spouse Only
* Spouse Only Cost - $97.20
* Annuity Base Amount - $1495.42
* Fifty-five percent annuity amount - $822.48
* Thirty-five percent annuity amount - $523.40

6.  A self-authored letter, written by the applicant, addressed “To Whom It May Concern,” shows the date, 1 November (no year listed).  The letter states that she is the widow of a retired Army MSG who died in September 1998.  Her husband was diagnosed with phase four cancer in July 1997 and the following year was one of great sadness and suffering.

7.  She also stated that when her husband died, she could barely get up to go to work.  She never notified DFAS of his death and as a result, his military retirement checks kept coming in.  She knows she should have written a letter of notification to the Army so that the amount would have been reduced to the surviving spouse percentage.  However, when DFAS found out about his death, his retired pay was stopped altogether. 

8.  She contends that it has been over five years and the excess monies should have been recaptured (recouped) by DFAS by now.  She is truly sorry for any problems her inaction may have caused and she is ready to do whatever she has to in order to straighten things out. 

9.  A staff member of the Board contacted DFAS on 15 April 2011 to request information pertaining to a possible SBP debt owed to the Army.  The response from DFAS shows that the following was not on file:

* DA Form 4240
* SBP debt
* Death certificate
* No application from the applicant for SBP benefits

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.  Elections are made by category, not by name and cannot be changed except as provided for by law.

11.  Information obtained from the DFAS Homepage, under the Retired Military and Annuity tab, provides instructions for reporting the death of the retiree.  It states late notification of a retiree's death may result in burdensome consequences, including delays in finalizing a member's account, payment of arrears of pay and the establishment of an SBP annuity.  A retiree's entitlement to retired pay ends on the date he or she dies.  Therefore, delayed reporting of a retiree's death may result in an overpayment that will be collected from a financial institution, the member's estate, or from the annuitant if the annuitant is found to be in receipt of the retired pay funds.  The annuitant of those funds will be required to return any unearned payments of the decedent's military retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows prior to the FSM's retirement, he elected full SBP coverage for spouse and children.  He retired on 30 April 1992 and began making SBP premium payments the following month.  

2.  The evidence also shows he died on 27 September 1998 and his death was not reported to DFAS in a timely manner and his spouse continued to collect his full retirement pay until it was stopped in August 2004.  During the period she was in receipt of his retired pay, the SBP premiums were being deducted from his monthly check. 

3.  In view of the circumstances of this case it would now be proper to correct the FSM's record to show:

* The applicant reported the FSM's death in a timely manner
* She applied for the SBP annuity  in a timely manner
* Paying to her the SBP annuity payment retroactive to the day after his death, minus overpayment of retired pay owed to the government

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 applied for SBP in a timely manner, and paying to her all SBP annuities due, minus any overpayment of retired pay.   




      _______ _  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)                                         AR20110000905



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ABCMR Record of Proceedings (cont)                                         AR20110000905



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