BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120009417 


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 adult disabled daughter of a deceased retired former service member (FSM), requests:

* entitlement to her father's Survivor Benefit Plan (SBP) annuity and/or the Reserve Component SBP (RCSBP) annuity
* transfer of her father's educational benefits to her
* payment of any Department of Veterans Affairs (VA) pension funds and/or life insurance that is due
* payment of funeral expenses that were not previously paid to her

2.  The applicant states:

	a.  She is an adult, incapacitated, surviving daughter of a deceased retired FSM.  She was born with spina bifida at Scott Air Force Base, IL.  When her father died she was not and still is not mentally capable of understanding what she needed to do to correct his benefits, receive them, or file for them.  She has been disabled over 11 years since 2002.

	b.  Her mother passed away on 30 June 1993 and her father passed away on 23 September 1993.  She knows her father transferred his SBP benefits to her as she was with him when he did this at Scott Air Force Base.  She knows her father changed his RCSBP benefits to her as she was disabled way before he or her mother passed away.  His records will prove he paid for the RCSBP as she was and still is an incapacitated child over 21 years of age.

	c.  The VA made a large mistake as his death was 100-percent service connected.  She received her father's medical records 3 years ago and it shows he was disabled around 1984.  The Army gave him his pension around 1999 and he was paid 100-percent disability of $1,674.00 a month.  She is not receiving any financial support from the VA and her income has dropped from $1,300.00 to $814.00 a month.  She needs the SBP annuity paid soon or she is going to lose her home.  The VA will not pay her Dependency and Indemnity Compensation (DIC) benefits as of yet.

3.  The applicant provides:

* FSM's certificate of death
* her certificate of birth
* her driver's license
* her U.S. Uniformed Services dependent identification card
* FSM's DD Form 1300 (Report of Casualty)
* DD Form 2656-7 (Verification for Survivor Annuity)
* Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Financial Management Service Direct Deposit form
* two letters
* National Personnel Records Center (NPRC) service request printout
* request for records from the applicant to the NPRC
* letter from the applicant to the Defense Finance and Accounting Service (DFAS), dated 3 April 2012, with attachments
* three pages of VA records pertaining to the FSM

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.  After having had prior service, the FSM enlisted in the Regular Army on 14 December 1960.  He was honorably retired from active duty on 29 February 1968 and was placed him on the Retired List in the rank of staff sergeant effective 1 March 1968.

3.  His record is void of any documentation that shows he ever enrolled in the Retired Servicemen's Family Protection Plan (RSFPP) or the SBP.

4.  He died on 23 September 1993.  His certificate of death, dated 27 September 1993, shows that at the time of his death he was a widower.

5.  An email from DFAS, dated 20 November 2012, stated there were no records on file pertaining to the FSM and had no way to determine if the FSM ever enrolled in the SBP.

6.  Public Law 83-239, enacted 8 August 1953, established the Uniformed Services Contingency Option Act (USCOA) as a way to provide for an annuity after death to surviving dependents.

7.  Public Law 87-381, enacted 4 October 1961, established the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.

8.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and 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.  An election, once made, was irrevocable except in certain circumstances.  It declared a 12-month open season for those members who retired prior to enactment of the law.  Public Law 93-155, enacted 16 November 1973, extended that open season from 12 to 18 months (21 September 1972-20 March 1974).

9.  Public Law 97-35, enacted 12 August 1981, established a second Open Season from 1 October 1981-30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

10.  Public Law 101-189, enacted 29 November 1989, established a second open season to be conducted 1 October 1991 through 30 September 1992.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  Public Law 101-510, enacted 5 November 1990, delayed the start of the open season to 1 April 1992 through 31 March 1993.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 (and eligible to participate in SBP) to provide an annuity for their survivors should they die before reaching age 60.

12.  Public Law 110-552 established legal limitations on the transferability of unfunded Post-9/11 GI Bill benefits and limits eligibility to members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

DISCUSSION AND CONCLUSIONS:

1.  The SBP did not exist at the time the FSM retired from the Army.  There is no evidence in his record and the applicant has not submitted any evidence that shows he ever enrolled in the RSFPP or that he enrolled in the SBP during an open season.

2.  With respect to the RCSBP, this program is for service members who qualified for a Reserve retirement.  As the FSM retired from the Regular Army and not a Reserve Component, he was not eligible to enroll in the RCSBP.

3.  With respect to the transfer of educational benefits, the option to transfer educational benefits to eligible family members is for military members who were serving on active duty on or after 1 August 2009.  This option did not exist at the time of the FSM's service.

4.  With respect to any pension, life insurance, funeral expenses, educational, or other VA benefits for surviving family members, these issues are outside the purview of this Board.  The applicant is advised to address these issues directly to the VA.

5.  Regrettably, in view of the foregoing there is insufficient evidence upon which to base granting the requested relief.

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)                                         AR20120009417



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ABCMR Record of Proceedings (cont)                                         AR20120009417



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