IN THE CASE OF:	  

		BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120006665 


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 a waiver of the 6-year statute of limitation (SOL) of her application for benefits under the Survivor Benefit Plan (SBP) as the widow of a former service member (FSM).

2.  The applicant states that an application for the SBP was made on 1 August 1996. The fax was sent to the Office of Personnel Management instead of the Defense Finance and Accounting Service (DFAS).  Consequently, the application was never acted upon.  In the meantime, she began receiving a widow's pension from the Department of Veterans Affairs (VA) and never followed-up on the SBP annuity.  She did not understand the difference between these two benefits and she trusted the VA office and DFAS were acting in her best interest.  She has never received the SBP that was due her.

3.  The applicant provides:

* three VA Forms 21-4138 (Statement in Support of Claim)
* Report and Certificate of Marriage
* DA Form 3140 (Designation of Beneficiary – Unpaid Retired Pay of Deceased Retired Member)
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* FSM's Certificate of Death
* VA letter
* two DFAS letters
* 
DD Form 2656-7 (Verification for Survivor Annuity)
* Transmit Confirmation Report

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 records show he was born on 7 February 1929.  He enlisted in the Regular Army on 4 June 1946.

3.  The applicant and the FSM were married on 22 October 1968.

4.  On 12 February 1969, the FSM completed and signed a DA Form 3140 wherein he designated the applicant as his beneficiary for unpaid retired pay upon his death.

5.  On 12 February 1969, the FSM completed and signed a DD Form 418 (Data for Payment of Retired Armed Forces Personnel) wherein he elected not to participate in the Retired Serviceman's Family Protection Plan (RSFPP).

6.  The FSM was honorably retired in pay grade E-7 on 28 February 1969.  He was credited with completing 22 years, 8 months, and 12 days of active service.

7.  On 11 November 1972, the FSM completed and signed a DD Form 1881 (SBP Election Certificate by Existing Retiree) wherein he indicated he was married and elected not to participate in the SBP.

8.  The FSM died on 12 July 1996.  His death certificate shows he was married and lists an individual other than the applicant as his surviving spouse and informant.

9.  In a letter, dated 13 September 2011, the VA denied service connection for cause of death and disallowed the applicant's claim for the Widow's Pension benefits from the VA.

10.  In an undated letter, a staff member of the DFAS Annuity Pay Operations section advised the applicant of the following:

	a.  The SBP, Title 10, U.S. Code (USC), sections 1447-1455, was enacted on 21 September 1972, to provide retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their survivors.  Upon retirement, the FSM elected spouse coverage under the SBP program.

	b.  Title 31, USC, section 3702(b)(1), states that payment cannot be issued regardless of entitlement because the 6-year SOL has expired.  They have researched the FSM's record and determined that no application for an annuity had been received by their office until 19 October 2011.  Therefore, due to the SOL, no annuity is payable since they have no documents to support that she applied for this annuity with the 6-year time frame.

11.  In a letter, dated 16 July 2012, DFAS advised a Member of Congress of the following:

	a.  Their records indicated the FSM was placed on the military retired rolls on 1 March 1969.  In 1953, the Uniformed Service Interagency Option Act was enacted to allow retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries.  This was renamed the RSFPP in 1961.

	b.  The SBP was enacted on 2 September 1972 to allow retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries.

	c.  Regrettably, the applicant was not eligible for any entitlements from DFAS. The FSM died on 12 July 1996 and based on their review of his military retired pay account, he declined participation in both the RSFPP and SBP.  They were enclosing copies of the FSM's declination of the RSFPP and SBP coverage for her information and review.

	d.  They noted that spousal concurrence of a retiree's declination of annuity coverage was not required by law until 1 March 1986.  The FSM did not elect to 

participate in the SBP during an open enrollment period prior to his death.  Furthermore, no premium deductions were ever made from his retired pay account.  Based on this, there are no annuity entitlements payable to the applicant from the FSM's military retired pay account.

	e.  Regrettably, the information previously provided to the applicant regarding the FSM's SBP election was incorrect.  If the applicant had requested an annuity within 6 years of the FSM's death, her claim would have been denied due to the FSM's declination of SBP coverage.  They apologized for the incorrect information provided in the letter sent to the applicant.

	f.  They recommended that the applicant contact the VA regarding entitlement to benefits.  The letter also advised the applicant to petition the ABCMR to correct the FSM's record to reflect that he elected SBP spouse coverage upon the program's establishment and that she applied for the SBP annuity within 6 years of the FSM's death.

12.  The applicant provided a DD Form 2656-7, dated 17 October 2011, wherein she listed the FSM as the deceased member and her name as the claimant for the SBP.

13.  On 26 September 2012, DFAS verified that the FSM declined the RSFPP and SBP.  On 2 October 2012, DFAS verified that the DD Form 1881 contained in the FSM's records was very light and faint; they sent the best copy they could.

14.  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.

15  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring establishment of the SBP on the former spouse's behalf provided the member agreed to provide coverage.

16.  Title 10, USC, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.


17.  Title 31, USC, section 3702, also known 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, USC, 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 evidence of record shows the FSM and the applicant were married on 22 October 1968.  He retired on 18 February 1969.  On 11 November 1972, he declined to participate in the SBP.  DFAS verified that he did not make an election to participate in the SBP during an open enrollment prior to his death.

2.  The FSM died on 12 July 1996.  His death certificate shows he was married and lists an individual other than the applicant as the surviving spouse and informant.

3.  The applicant's contentions and the documents she provided were carefully considered.  DFAS verified the FSM elected not to participate in the SBP and the applicant's concurrence was not required.  Therefore, the applicant was not entitled to an SBP annuity.

4.  Based on the foregoing, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to an SBP annuity.

5.  It is also noted that it appears the FSM and the applicant was divorced on an unknown date.  His death certificate lists another individual as his surviving spouse. 
There is no evidence the applicant was married to the FSM at the time of his death.

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 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)                                         AR20120006665



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006665



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1