IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110021436 


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, through his Member of Congress, payment of a Survivor Benefit Plan (SBP) annuity to him, as a disabled adult, based on the death of his father, a former service member (FSM) and his mother, the beneficiary of the FSM's SBP annuity. 

2.  The Member of Congress states his office has been working with officials of the Defense Finance and Accounting Service (DFAS) for several years.  DFAS denied the benefit because their records show the FSM elected "spouse" coverage (children excluded) on 1 October 1973.  The applicant became aware of the denial after the death of his step-mother in March 2006.  Once she died, the annuity payment she had been receiving since the FSM's death on 20 September 2004 stopped.  That is when he became aware that he was not entitled to the benefit.  

3.  The Member of Congress also states that the applicant was diagnosed with Polio at the age of 2 and he has been disabled ever since.  He remained in the care of his father, the FSM, and his step-mother until their death.  He relied on social security disability payments as well as his father's annuity payment.  

4.  The Member of Congress provides:

* Letter, dated 23 February 2009, from DFAS - Retired and Annuity Pay
* Applicant's statement
* DD Form 2656-7 (Verification for Survivor Annuity)
* Letter from a medical doctor to the Member of Congress
* FSM's certificate of death
* Applicant's birth certificate
* FSM's promotion certificate
* FSM's WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service)
* Photograph of the applicant
* Two statements of support

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 5 November 1910.  He married Jane, the applicant's natural birth mother on 12 February 1944. 

3.  He was appointed as a second lieutenant in the Army of the United States and entered active duty on 14 August 1942.  He was honorably released from active duty on 4 October 1946.  

4.  He was appointed as a Reserve commissioned officer on 16 September 1952. He served in a variety of assignments and he was promoted to lieutenant colonel (LTC) in the U.S. Army Reserve on 19 May 1961.  

5.  The applicant was born on 7 September 1952.  He states he contracted Polio at the age of 2. His mother, the FSM's spouse, died on 26 August 1953.

6.  The FSM married Grace in 1957.

7.  He was transferred to Retired Reserve on or about 10 August 1964 and he was ultimately placed on the retired list in his retired grade of LTC on 5 November 1970, his 60th birthday.

8.  DFAS record show he elected spouse SBP coverage on 1 October 1973.
9.  The FSM died on 20 September 2004.  His death certificate shows he was married to Grace at the time.

10.  On 18 February 2005, the FSM's spouse, Grace, submitted a DD Form 2656-7 verifying her entitlement to the FSM's SBP annuity.  Accordingly, upon receipt of her application, DFAS established an annuity for her as a spouse.  

11.  The FSM's spouse and applicant's step-mother, Grace, died on 26 January 2006.  

12. On 23 February 2009, in response to the applicant, an official at DFAS - Retired and Annuity Pay, advised him that after reviewing the FSM's retired pay account, it was determined he elected spouse coverage, children excluded, on 1 October 1973.  Additionally, there was no information of the applicant's incapacitation.  As such, the account closed upon notification of the beneficiary's death. 

13.  The applicant provides a photograph of himself on crutches.  He also provides:

	a.  A self-authored statement, dated 30 September 2011, wherein he states that he contracted Polio at the age of 2 and that after the death of his mother, he and his siblings were placed in foster homes until their father the FSM remarried in 1957.  Throughout his entire life, his father and step-mother supported him financially and he has no other source of income.  

	b.  A statement, dated 13 June 2010, from an individual who has known the applicant since he was a young boy.  The individual states the applicant did not have an easy life.  He had Polio before the vaccine was discovered and he lost his mother at an early age.  As his siblings grew older, he remained with his father and step-mother until they died.  He deserves the SBP benefits.

	c.  A statement, dated 15 June 2010, from an individual who states she has known the applicant since 1958 and lived next door to him.  

14.  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.  

15.  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.

16.  Title 31 U. S. Code, section 3702, commonly referred to as the "Barring 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 in the USAR as a commissioned officer from 1952 to August 1964.  He was married with dependents.  It appears on 1 October 1973, he elected SBP coverage for spouse.  The FSM died on 20 September 2004.  His widow, Grace, began receiving the SBP annuity. 

2.  The FSM's widow and applicant's step-mother, Grace, died on 26 January 2006.  Upon her death, the SBP annuity stopped as there was no other eligible beneficiary.  

3.  By law, the annuity is payable to an eligible spouse until death and then to the surviving eligible children only if first a "spouse and children" election was made and second, 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.  

4.  Although the applicant states he relied upon his parents for his sole support, he has not established that he is incapable of self-support because of a mental or physical incapacity which existed before his 18th birthday.  If the applicant can provide such documentation, he can request the Board reconsider his application within one year of this decision.  He must additionally establish that the failure of his father to elect "spouse and children" at the time of his enrollment in the SBP constitutes an error or injustice.

5.  Regretfully, the applicant is not entitled to the annuity. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __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)                                         AR20110021436



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ABCMR Record of Proceedings (cont)                                         AR20110021436



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