IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120002747 


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 spouse of a deceased former service member (FSM), requests Survivor Benefit Plan (SBP) benefits for the FSM's daughter retroactive to the date of his death.  

2.  The applicant states she has no record of completing the DD Form 2656-7 (Verification for Survivor Annuity) nor is there any record indicating she elected or declined SBP.

3.  The applicant provides copies of:

* DD Form 1300 (Report of Casualty)  
* DD Form 2656-7 
* two memoranda

CONSIDERATION OF EVIDENCE:

1.  The FSM was a sergeant in the Pennsylvania Army National Guard.  

2.  His record contains a:

	a.  New Jersey Department of Health and Senior Services, Certificate of Marriage, indicating the FSM and the applicant were married in June 2002.



	b.  DD Form 93 (Record of Emergency Data) indicating the applicant's and FSM's daughter, S____ E___, was born 1 July 2002. 

3.  Orders Number 026-097, issued by the Commonwealth of Pennsylvania, Department of Military and Veteran Affairs, dated 26 January 2005, show the FSM was ordered to active duty, effective 29 January 2005, in support of Operation Iraqi Freedom.

4.  The applicant submitted a memorandum from the U.S. Army Human Resources Command, Alexandria, VA, Subject:  Line of Duty Determination, dated 21 September 2005, which shows the FSM died in the line of duty in Iraq on 19 September 2005 as the result of hostile action.

5.  The FSM's record contains and the applicant submitted a DD Form 1300, which shows the FSM was killed in action on 19 September 2005, in Iraq.  The DD Form 1300 shows in item g (Duty Status) Active Duty Support; 29 January 2005 to 1 October 2006.

6.  His record contains a DD Form 1172 (Application for Uniformed Services Identification Card Defense Enrollment Eligibility Reporting System), dated 30 March 2010, which lists S___E___ as the FSM's dependent.

7.  The applicant also submitted an incomplete DD Form 2656-7, to show verification of eligibility for an annuity for the FSM's daughter, dated 13 December 2011, which shows in:

* item g (Type of Benefit Claimed), SBP 
* item h (Relationship to Decedent), Child 

8.  The applicant submitted a memorandum from the Office of the Deputy Chief of Staff G1 Washington, DC, to the Defense Finance and Accounting Service, U.S. Military Annuitant Pay, New Accounts, London, KY, Subject:  SBP Election on behalf of a Soldier Who Died on Active Duty, (the FSM's name and social security number), dated 19 December 2011, which stated that in accordance with Title 10, U.S. Code, Chapter 73, Section 1448, the FSM's spouse's request for an SBP election of child only is approved retroactive to the FSM's death, on 19 September 2005.

9.  Title 10, U.S. Code, Chapter 73, Section 1448d, provides for an optional annuity for dependent children of members who died on active duty after             7 October 2001, and for whom there is a surviving spouse eligible for an annuity.  


The Secretary may pay an annuity under this subchapter to the member's dependent children instead of paying an annuity to the surviving spouse if the Secretary concerned, in consultation with the surviving spouse, determines it appropriate to provide an annuity for the dependent children.

10.  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.

11.  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 spouse of a deceased FSM, requests SBP benefits for the FSM's daughter.

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 the SBP.  The evidence further establishes that S___ E___ is the FSM's daughter.

3.  The applicant states she does not remember if she completed the DD Form 2656-7.

4.  It is 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 daughter on 20 September 2005, thereby entitling the daughter 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 20 September 2005 and that they were received and processed by the proper office in a timely manner; and

	b.  paying the FSM's daughter an annuity retroactive to 20 December 2005, 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)                                         AR20120002747





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ABCMR Record of Proceedings (cont)                                         AR20120002747



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