IN THE CASE OF:	  

		BOARD DATE:	  2 December 2013

		DOCKET NUMBER:  AR20130005685 


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, in effect, entitlement to the Survivor Benefit Plan (SBP) annuity based on the death of her father, a former service member (FSM).

2.  The applicant states she is not claiming any error exists in the FSM's record.  She is the sole surviving beneficiary of the FSM and she is seeking any benefits/insurance or SBP that she might be due as the child of the FSM.  Her father was murdered after serving his country and she was only 20 years of age when he was murdered.  She was too young to know how to handle this event.  Her parents had divorced and she was on her own trying to find documents related to his benefits.

3.  The applicant provides copies of:

* letters from the Defense Finance and Accounting Service (DFAS)
* the FSM's death certificate
* her driver's license
* her birth record

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 records show he enlisted in the Regular Army on 14 March 1978 after having prior service.  He served through multiple reenlistments or extensions, in a variety of stateside or overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  On 17 April 1992 in anticipation of his upcoming retirement effective 1 July 1992, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  This form shows:

* he listed the applicant as the beneficiary for arrears of pay and he listed his mother as the beneficiary for gratuity pay
* he indicated he was married and had a dependent child (the applicant)
* he declined SBP coverage – his spouse was not available but was notified of this election by letter, dated 15 April 1992 
* he indicated he had been fully counseled on benefits afforded under the SBP
* he and a witness authenticated this form with their signatures

4.  He retired on 30 June 1992 and he was placed on the Retired List in the rank/grade of SSG/E-6 on 1 July 1992.  He was credited with over 20 years of active service.

5.  The FSM died on 12 June 1993.  His certificate of death shows his marital status as "divorced."

6.  On 23 June 1993, DFAS communicated with the applicant regarding the annuity and arrears of pay.  A DFAS official stated:

	a.  In accordance with Title 10, U.S. Code, section 2771, all monies due from the final settlement of the retiree's account must be paid in the order of precedence.  First, to the designated beneficiary; second, to the surviving spouse; third, to the children and/or their descendents; fourth, to the surviving parents; fifth, to the legal representative; and sixth, to the persons entitled under the law of domicile.

	b.  She was asked to complete an enclosed application for arrears of pay and/or annuity and return the form with the death certificate to DFAS.  DFAS would make a determination of her entitlement to any benefits/unpaid monies.

7.  There is no indication in the FSM's records or at DFAS that she responded to DFAS.

8.  On 28 December 2012, DFAS again communicated with the applicant regarding unpaid compensation from the FSM's military retired pay account and explained the barring statute.  A DFAS official explained that claims for unpaid compensation begin to accrue upon the date of the retiree's death.  The records showed the FSM died on 12 June 1993.  Her claim for unpaid compensation was received on 5 November 2012.  The statute of limitations was reached on 12 June 1999.

9.  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. An election, once made, was irrevocable except in certain circumstances.  This law also provided that every member having a spouse and/or child(ren), who retired/transferred to the Retired List on or after that date, was automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List.

DISCUSSION AND CONCLUSIONS:

1.  There are two issues involved in this case:  arrears of pay and SBP annuity.

2.  With respect to the issue of arrears of pay:

	a.  Arrears of pay is a one-time payment made to a beneficiary after the member's death.  The arrears of pay to the member's beneficiary will include the pro-rated amount of the retiree's final month’s pay, and any other money owed to the retiree at the time of his/her death.  In most cases, the arrears of pay will include the pro-rated amount of the retiree's final month's retirement pay.  This is because a retiree's entitlement to retirement pay ends on the date of that retiree's death.  When death is reported, DFAS will reclaim the retiree's final month's pay and audit his/her account.  The amount of the payment actually owed to the retiree will then be computed and given to the arrears of pay beneficiary.

	b.  The applicant was notified in June 1993 of the requirements/procedure to claim arrears of pay.  There is no evidence she responded to DFAS.  Additionally, the applicant indicated there is no error in the FSM's records.  As such, she is not entitled to the arrears of pay.

3.  With respect to the SBP:

	a.  Prior to retirement the FSM was provided an opportunity to make an SBP election.  He indicated he was married at the time and he willingly and in writing elected not to participate in the SBP on 17 April 1992.  His spouse at the time was not available.  Accordingly, the retirement services officer dispatched a letter informing her of this election.

	b.  Since the FSM declined participation in the SBP, entitlement to retired pay stopped with his death.  There was no SBP annuity at the time of his death because he elected not to participate in the SBP.  As such, she is not entitled to an SBP 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 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)                                         AR20130005685



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ABCMR Record of Proceedings (cont)                                         AR20130005685



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