IN THE CASE OF:  	  

		BOARD DATE:  16 July 2015	  

		DOCKET NUMBER:  AR20140020079 


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, in effect, Survivor Benefit Plan (SBP) benefits for the FSM's three sons retroactive to the date of his death."

2.  The applicant states that she has not been allowed to request the "Child Only" option for the SBP with regard to her late husband who was killed while on active duty.  As a result, her family received fewer benefits due to an existing offset that reduced her benefit based on her Department of Veterans Affairs (VA) Dependent Indemnity Compensation (DIC).  She was originally informed that she was not eligible for SBP at all.  Years later, she was informed that she was eligible, but was not advised about the "Child Only" option.  She was finally informed about the option this year, but now she has been advised that since more than 6 years have passed, she is not eligible to switch to the "Child Only" option.  This was an error on the part of military staff members of the retirement service office/casualty section.  She should have been informed of and been afforded the option of the "Child Only" SBP.

3.  The applicant provides copies of the following:

* marriage certificate
* three birth certificates 
* two DD Forms 1300 (Report of Casualty)
* U.S. Army Enlisted Records and Evaluation Center (USAEREC) Form 3 (Statement of Service – Enlisted Personnel)

* SBP Eligibility Information on Member Dying on Active Duty memorandum
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army on 3 November 1987.  

2.  The applicant provided copies of the following:

   a.  A marriage certificate which shows she and the FSM were married on 21 November 1988.

   b.  Three birth certificates for three males children born on XX February 1991, XX March 1995, and XX April 2002, respectively.  The certificates list the applicant and FSM as their mother and father.

   c.  A DD Form 1300, dated 7 October 2005, which shows the FSM died on 6 October 2005 while serving on active duty in Germany.

   d.  An USAEREC Form 3, dated 11 October 2005, which shows the FSM was credited with 17 years, 11 months, and 4 days of creditable service for retirement as of his death.  The form also shows he was credited with completing 20 years, 1 month, and 6 days of total service for basic pay purposes. 

   e.  An SBP Eligibility Information on Member Dying on Active Duty memorandum, dated 11 October 2005, wherein the Chief, Personnel Actions Branch, USAEREC, advised the U.S. Army Human Resources Command (HRC) that they were furnishing the following information for use in making a determination for eligibility for the SBP pertaining to the FSM.  Public Law 92-425 applied and submitted the following information for the FSM:

* he had completed 17 years, 11 months, and 4 days of active military service
* he had completed 20 years, 1 month, and 6 days for basic pay purposes
* appropriate retirement law was Title 10, U.S. Code (USC), section 3914
* retirement grade was under retirement law Title 10, USC, section 3914
* addendum information was Public Law 94-106 (Pay Inversion)
* he was promoted to sergeant first class/E-7 on 1 November 1999

   f.  A DD Form 1300, dated 25 April 2005, which shows the FSM died as a result of illness, complications of Ischemic Small Bowel Infarct per the Criminal Investigation Command Report.  This report replaced the DD Form 1300 (Interim Report) dated 7 October 2005.

   g.  A DD Form 2656-6 (SBP Election Change Certificate) the applicant completed and signed on 12 November 2014 to show verification of eligibility for an annuity for the FSM's three children which shows in:

* Section II (Current Coverage) – Spouse Only
* Section III (Conditions That Trigger Eligibility to Change Coverage) – she did not place an "X" in the box for death of a spouse
* Section IV (Requested Change to Coverage) – Children Only
* Section VI (Spouse and Children Information) – she listed her name and the names, social security numbers, and dates of birth of their three children

3.  Title 10, USC, 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.

4.  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, USC, 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.

5.  Public Law 108-136, enacted 24 November 2003 extended Child only elections to survivors of active duty deaths on or after 24 November 2003.

6.  Title 31, USC, 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 children.

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 the FSM had three sons.

3.  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.

4.  Therefore, it would be appropriate to show the applicant signed and submitted an application (DD Form 2656-6) on behalf of the FSM's sons on 6 October 2005, thereby entitling the children 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:

* showing the applicant completed and returned a DD Form 2656-6 and related documents to the proper office on 6 October 2005 and that they were received and processed by the proper office in a timely manner


* paying the FSM's children an SBP annuity retroactive to the day after his death, 7 October 2007




      ___________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)                                         AR20140020079





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ABCMR Record of Proceedings (cont)                                         AR20140020079



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