BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120000790 


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 to receive a Special Survivor Indemnity Allowance (SSIA) and an Survivor Benefit Plan (SBP) annuity based on the death of her husband, a deceased former service member (FSM).

2.  The applicant states:

   a.  the Defense Finance and Accounting Service (DFAS) never informed her of her SSIA eligibility resulting in her unawareness of the 6-year deadline to apply for this benefit;
   
   b.  she read about SSIA in a magazine and starting writing letters but never received any response;
   
   c.  the Army, DFAS, and Department of Veterans Affairs (VA) had no record of her and someone dropped the ball on her because no one followed up on her request; and
   
   d.  she received Dependency and Indemnity Compensation (DIC) following the FSM's death and hopes that a review of the FSM's record will establish that she is entitled to SBP coverage.
   
3.  The applicant provides copies of:

* seven self-authored statements
* Certificate of Marriage
* Certificate of Death
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* DD Form 2656-7 (Verification for Survivor Annuity)
* Standard Form 1199A (Direct Deposit Sign-Up Form)
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Standard Form 180 (Request Pertaining to Military Records)

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's military record shows he initially entered the Hawaii Army National Guard (HIARNG) on 14 March 1951.

3.  On 12 January 1952, the FSM and the applicant were married.

4.  On 19 January 1953, the FSM was discharged from the HIARNG and enlisted in the Regular Army on 20 January 1953.  The FSM was trained in and served in military occupational specialty 94B (Cook).

5.  On 2 March 1973, the FSM completed a DD Form 1883.  It shows he elected SBP coverage for his spouse and two children based on full retired pay.

6.  On 31 March 1973, the FSM was retired from active duty.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at that time shows he completed 20 years, 3 months, and 12 days of creditable active duty service.

7.  The applicant provides a copy of the FSM's death certificate.  It confirms he died on 29 April 1974, and that he was married to the applicant at that time.

8.  On 7 June 2012, a DFAS staff member forwarded the ABCMR a copy of the FSM's completed DD Form 1883 and a copy of their undated letter prepared in response to an inquiry from the applicant's senator, which shows:

   a.  The FSM retired 31 March 1973 and died 29 April 1974.
   
   b.  The applicant receives DIC from the VA.
   
   c.  Public Law 92-425, enacted on 21 September 1972, prohibits an annuitant from receiving the full amount of both an SBP annuity and DIC payable by the VA.  An annuitant is entitled to either the amount of SBP that exceeds the DIC amount or the DIC only, if it is greater than the SBP.
   
   d.  Section 644 of the National Defense Authorization Act for Fiscal Year 2008 provides for SSIA.  Under this legislation, annuitants entitled to a monthly SBP annuity and a DIC entitlement from the VA will receive an SSIA.  The applicant indicated her awareness she is not entitled to SBP because her DIC payments would be greater; however, she is seeking SSIA.
   
   e.  The applicant obtained a copy of the FSM's DD Form 1883 from the National Personnel Records Center, indicating he elected to enroll in the SBP.  She provided DFAS a copy of that form and requested establishment of her annuity account.  DFAS is unable to establish the applicant's SBP annuity account because it has been more than 6 years since the FSM's death, which exceeds DFAS's statute of limitations.  As a result DFAS provided the applicant a DD Form 149 for submission to this Board.

9.  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.

10.  Section 644 of the National Defense Authorization Act for Fiscal Year (FY) 2008 provided for the SSIA.  This law applies to surviving spouses whose SBP annuity is reduced or eliminated by their DIC.  This monthly allowance started at $50 in FY 2009 and will gradually be increased until it reaches $100 after         FY 2013.  Payments began 1 October 2008 and will end 28 February 2016.  The allowance may not be greater than the SBP reduction.

11.  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.  At least one of the reasons behind the barring statute was not of major importance in this case.  The applicable records are readily accessible and the applicant’s case is not difficult to prove.  The FSM elected SBP spouse and children coverage at the time of his retirement from active duty.  He and the applicant were married at the time of his death on 29 April 1974, more than one year later.  The FSM's DFAS record shows the applicant receives DIC and now requests to establish her entitlement to both SBP and SSIA.  

2.  Based on the FSM's retirement and his enrollment in the SBP for spouse and children coverage, full base amount, his record should be corrected at this time to show the applicant applied for the SBP annuity in a timely manner and to pay her the annuity, provided the DIC is not authorized at a higher rate and that she was/is otherwise eligible (e.g., not remarried before age 55), retroactive to the date of the FSM’s death.

3.  Accordingly, once the applicant's SBP annuity is determined, her entitlement to SSIA should also be determined.

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:

	a.  showing the applicant made a request for an SBP annuity in a timely manner and that it was received and accepted by the appropriate office;

	b.  determining the applicant's eligibility for SSIA based on this correction of records and showing she applied for the SSIA, if eligible, in a timely manner; and

	c.  paying the applicant an SBP annuity and/or SSIA retroactive as determined by DFAS provided she is otherwise eligible to receive these benefits.



      __________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)                                         AR20120000790



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ABCMR Record of Proceedings (cont)                                         AR20120000790



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