IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110017662 


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 her disabled sister, Jennifer, be entitled to payment of the Survivor Benefit Plan (SBP) annuity based on the death of her father, a former service member (FSM), and subsequent death of her mother, the beneficiary of his SBP annuity. 

2.  The applicant defers her statement to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the decision, dated 7 December 2010, by the Defense Finance and Accounting Service (DFAS) to deny payment of the SBP annuity to the FSM’s incapacitated daughter, Jennifer, be overturned. 

2.  Counsel also requests the FSM’s daughter, Jennifer, receive back pay of the annuity benefits effective the date of her mother’s death on 9 December 2003.

3.  Counsel states:

* Jennifer, the FSM’s incapacitated daughter, was denied the SBP annuity because it was made beyond the 6-year statute of limitations
* Her father, the FSM, was enrolled in the SBP, spouse and children coverage
* Upon his death, this coverage was to provide an annuity to his wife, Joyce, and any incapacitated child over the age of 18
* Jennifer has been diagnosed as developmentally disabled since birth in 1964
* The FSM died in September 1983 and following his death, his spouse, Joyce, received his annuity
* Joyce tried hard to get confirmation that upon her death Jennifer would receive the annuity; she received a verbal but not a written confirmation that if she died, Jennifer would receive the annuity
* Joyce died in December 2003 and since her death, Jennifer has not been able to receive the annuity
* No one was aware of the statute of limitations and the family made good faith efforts to ensure the SBP would be paid to Jennifer
* The annuity is essential for Jennifer’s welfare and safety and it would be unjust to deny her the benefits her father and mother worked so hard to ensure she would receive upon their death
* Counsel spoke with different officials at DFAS and he was informed that the 7 December 2010 decision to deny Jennifer the annuity was annotated in an electronic file but no hard copy was issued
* Counsel also spoke with various DFAS officials in February 2012 in an attempt to obtain the 7 December 2010 denial decision but was told again it is in electronic format

4.  Counsel provides:

* FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Jennifer’s birth certificate
* Jennifer’s clinical records, psychological reports, functional assessments, disability referrals, medical history report, and various other evaluations
* FSM’s death certificate
* Letter from the Department of Veterans Affairs
* October 1983 DFAS letter to the mother
* October 1983 letter from the mother to DFAS
* November 1984 counsel’s letter to DFAS
* February 1985 DFAS letter to the mother
* November 1998 DFAS letter to the mother
* January 1999 mother’s letter to DFAS 
* Mother’s (Joyce) certificate of death
* February 2004 DOD - Defense Manpower Data Center (DOD-DMDC) letter to Catherine, the applicant and Jennifer’s sister
* July 2011 letter from Catherine, the applicant and Jennifer’s sister
* FSM's marriage certificate
* Self-authored affidavit
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.  The FSM was born on 26 February 1923.  Having had prior enlisted service, he was appointed as a second lieutenant in the Officer’s Reserve Corps and executed an oath of office on 22 June 1946.  

3.  He entered active duty on 28 November 1947 and served in a variety of stateside and/or overseas assignments and he attained the rank of lieutenant colonel (LTC).

4.  He married Joyce on 15 April 1950.  They had four children, the youngest of which is Jennifer, born on 21 February 1963.  Jennifer was diagnosed with a learning disability at a very young age.  Her psychological, educational, and social reports over the years confirm her disability and incapacitation.

5.  The FSM was honorably retired on 30 June 1966 and he was placed on the retired list in his retired grade of LTC on 1 July 1966.

6.  The FSM died on 10 September 1981.  Although his SBP election certificate is not available for review with this case, according to DFAS records he elected spouse and child SBP coverage.  

7.  Subsequent to his death, his spouse, Joyce, collected his SBP annuity.

8.  On 22 August 1983, by letter, Joyce informed DFAS officials that her daughter, Jennifer, has long been diagnosed as disabled.  She (Joyce) requested verification that in the event of her death, Jennifer would continue to collect the SBP annuity by reason of her incapacitation/disability.


9.  On 7 October 1983, by letter, an official at DFAS notified Joyce that:

* The FSM elected an annuity for spouse and child
* In the event of her (Joyce’s) death, the annuity would be paid to the surviving eligible children
* The SBP provides that when there is a widow with one child under 18 or over 18 if incapacitated, the SBP would be reduced by an amount equal to the mother’s benefit received from the Social Security Administration
* There would no offset unless the retiree qualified for social security
* If the annuitant regardless of age has only one dependent or is incapacitated, the annuity would be offset when social security benefits are payable an account of the child
* The mother’s benefits are not payable to a widow for an incapacitated child who is institutionalized
* Her SBP annuity was $772.18 per month, reduced by $202.00 social security survivor benefit effective 1 October 1983

10.  On 27 November 1984, by letter to DFAS, the family counsel, a military officer, sought clarification of what rights Jennifer might have in light of her disability.  With the letter, counsel attached documents regarding her dependency and disability.

11.  On 19 February 1985, by letter, an official at DFAS notified the mother that the FSM had elected the SBP annuity for spouse and children.  The annuity is payable to an eligible spouse until death and then to the surviving eligible children.  A child is eligible if incapable of self-support because of mental or physical incapacity which existed before the 18th birthday or was incurred before age 22 during pursuance of a fulltime course of study or training in a recognized educational institution.  The letter further instructed the mother to complete the proof of Jennifer’s eligibility as it would be needed before an annuity could be paid at her (the mother’s) death.

12.  On 27 November 1998, by letter, an official at DFAS notified the mother to complete the Certificate of Eligibility and return it to DFAS.  

13.  On 13 January 1999, by letter to DFAS, the mother, Joyce, requested a written confirmation that should she die, her daughter, Jennifer, would receive the SBP annuity.


14.  On 9 December 2003, Joyce, the mother, died.

15.  On 4 February 2004, by letter to Jennifer’s sister, Catherine, the applicant, an official at DOD-DMDC informed her that DEERS (Defense Enrollment Eligibility Reporting System) had been updated to reflect her mother's death. 

16.  The applicant submitted a self-authored letter wherein she described the challenges her sister Jennifer experienced throughout the years. 

17.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  

18.  Title 10, U. S. Code, section 1447(11) defines “dependent child” as a person who is (1) unmarried; and (2) who is under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution, or is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday or incurred on or after the 18th birthday but before the 22d birthday while pursuing a full time course of study or training; and (3), who is the child of a person to whom the Plan applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.

19.  Title 31 U. S. Code, section 3702, baring act 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 FSM served on active duty as a commissioned officer from November 1947 to June 1966.  He was married with four dependents.  It appears at some stage, he elected SBP coverage for spouse and children.  


2.  The FSM died on 10 September 1981.  His widow, Joyce, began receiving the SBP annuity.  Knowing her daughter, Jennifer, was incapable of self-support, Joyce repeatedly inquired with DFAS regarding Jennifer's entitlement to the SBP annuity in the event that she (Joyce) died.  Multiple correspondences from DFAS informed her that since the FSM elected spouse and children SBP coverage and since Jennifer was incapacitated, in the event of her (Joyce's) death, Jennifer would be entitled to the SBP annuity.

3.  The FSM's widow and Jennifer's mother, Joyce, died on 9 December 2003.  Upon her death, the SBP annuity should have been started for Jennifer.  It is unclear if anyone notified DFAS of the widow's death.  Nevertheless, the fact that the annuity payments stopped upon her death should have triggered action by DFAS to start an annuity to Jennifer.  This did not happen.  By the time someone applied on behalf of Jennifer, DFAS imposed the 6-year statute of limitations. 

4.  Once the FSM's widow died, Jennifer should have received the annuity.  Further, all records needed to establish SBP entitlements are readily available and the government is not prejudiced by the lateness of this claim.  Therefore, the record should be corrected to show Jennifer is entitled to the SBP annuity, effective 10 December 2003, one day after the date her mother died, with entitlement to back annuity payments.

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 FSM's incapacitated daughter, Jennifer, filed a timely request for the SBP annuity 
* showing her request was timely received and processed by the appropriate DFAS office
* paying Jennifer the SBP annuity retroactive to the day after her mother's death on 9 December 2003



      ___________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)                                         AR20110017662



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ABCMR Record of Proceedings (cont)                                         AR20110017662



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