IN THE CASE OF:	  

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20140021359 


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 reconsideration of her earlier request for entitlement to her father's Survivor Benefit Plan (SBP) annuity.  

2.  The applicant states:

* it should not take an act of God to get the record straight and fix her SBP problem 
* she was deemed incapacitated as a child in 1990 and the Defense Finance and Accounting Service (DFAS) has this information
* DFAS mishandled her claim and assumed she aged off; she notified DFAS of this discrepancy and has worked with different offices to rectify this situation
* the 6-year statute of limitations does not apply because she filed her first claim on time but DFAS and the Army failed to communicate with each other 

3.  The applicant provides:

* letter, dated 6 November 2014 from DFAS to her Member of Congress
* previous record of proceedings (Docket Number AR20120009417, dated 13 December 2012)
* letter, dated 21 April 2015 from her estate administrator
* National Benefits Corporation check, term life insurance, dated 9 November 1993
* Congressional correspondence
* copies of the FSM's passport and driver license
* copies of her passport and driver license
* college transcripts
* her certificate of birth
* the FSM's certificate of death
* her mother's certificate of death
* FSM's report of casualty
* her neurological report (spina bifida cystica - a birth defect where there is incomplete closing of the backbone and membranes around the spinal cord)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120009417, dated 18 December 2012, and AR20130008711, dated 4 February 2014. 

2.  The applicant does not meet the criteria for a request for reconsideration in that her case was previously reconsidered by the ABCMR.  However, she provides a letter from DFAS to her Member of Congress that contains new information.  This is considered new evidence and warrants consideration by the Board as an exception to policy.  

3.  The FSM's records show he enlisted in the Regular Army on 17 May 1946 and served through multiple reenlistments in a variety of stateside or overseas assignments.  He served in Europe during World War II and the Korean War. 

4.  The FSM's records show he retired on 29 February 1968 and he was placed on the Retired List in his retired rank/grade of staff sergeant/E-6.  He was credited with over 21 years and 8 months of active service. 

5.  His records contain a DA Form 4240 (Data for Payment of Retired Personnel), with an illegible date.  The FSM indicated he was married to Inge and they did not have dependent children.  He also indicated he did not have children incapable of self-support because of a mental or physical disability.  He did not make an election with regard to the SBP.  He did claim he had two exemptions.  On page 2 of this form in item 14d (Name of Dependent Children) there is an illegible entry. 

6.  The FSM’s spouse died on 30 June 1993.  The FSM died on 23 September 1993.  He and Inge had a child, Michelle, the applicant who was born on 20 February 1970.  They also had another child, Margie (unknown date of birth). 

7.  On 26 March 2012, the applicant applied for a military identification card and enrollment in the Defense Enrollment Eligibility Reporting Systems.  Her enrollment was accepted under the Dependent's Medical Care Act of 1956.  She submitted documents related to her birth condition of spina bifida. 

8.  In May 2012, she applied to this Board (AR20120009417) for payment of the SBP annuity based on the death of her father and her incapacitation.  However, on 18 December 2012, her request was denied on the count of no evidence her father, the FSM, was enrolled in the SBP.

9.  In May 2013, she submitted a request for reconsideration (AR20130008711). She applied to this Board for reconsideration.  On 4 February 2014 the Board denied her request a second time based on lack of evidence. 

10.  On May 14, 2014, the U.S Army Human Resources Command wrote the applicant’s Member of Congress and stated the applicant was entitled to a military identification card based on an approved permanent incapacitation determination completed in 1990.  In 2012, another dependency determination was approved.  A dependency determination must be reviewed and approved by appropriate officials every 4 years in order to obtain a new military identification card.

11.  On 6 November 2014, by letter to her Member of Congress, DFAS officials responded to many issues.  DFAS stated: 

	a.  The arrears of pay (AOP) includes all unencumbered amounts owed to the deceased member at the time of their death.  Entitlement to retired pay terminates on the date of the retiree's death.   The FSM died on 23 September 1993.  His AOP included his military retired pay for the period of 1 September 1993 through 23 September 1993, in the amount of $642.58.  There were two beneficiaries that received 50 percent of his AOP.  The applicant received $321.29.  The AOP is a one-time payment and not an annual entitlement.

	b.  The SBP as outlined in Title 10, U.S. Code, Sections 1447-1455, was enacted on 21 September 1972, to allow retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries.	  [The FSM] entered into the 1981-1982 Open Season with an election of spouse and child.  His spouse died on 30 June 1993, leaving him with child only coverage, until his child aged off the system effective 1 July 1993, due to being the maximum age of 22.

	c.  Child coverage is referenced in Title 10, USC, Section 1447 Subsection 11, Eligible beneficiaries-Children, stating unmarried, and under the age of 18, or at least 18 but under 22 years of age, and pursuing a full-time course of study in a recognized educational institution.  A child whose 22nd birthday occurs before 1 July or after 31 August of a calendar year is considered to have become 22 years of age on the 1st day of July after that birthday.  Therefore, effective 31 July 1993, [the applicant] had aged off and [the FSM] no longer had a SBP beneficiary listed on his SBP account.  However, if DFAS was notified that an eligible child has been found incapacitated based on any of the above guidelines, the incapacitated child will remain an eligible SBP beneficiary, regardless of his or her age.  The incapacitation must be verified by a written statement certified by a medical official as to the nature and extent of the disability, as well as when the disability was originally diagnosed.

	d.  DFAS has received the applicant's Verification for Survivor Annuity (DD Form 2656-7) form on 12 April 2012.  Title 31, U.S. Code, section 3702 (b)(l ), commonly referred to as the Statute of Limitations, states that a claim must be received within 6 years from the date the claim is made.  Since the FSM died on 23 September 1993, any claim to the annuity had to have been received by 22 September 1999.  In the absence of any evidence that a claim was filed, DFAS is unable to comply with her request.  In compliance with the legislation referenced above, DFAS is unable to establish an annuity account for [the applicant].  [The applicant] was sent a letter dated 3 May 2012 advising her of this.  A copy of that letter is enclosed.  

	e.  [The Applicant] also states that she submitted an Application for Correction of Military Record (DD Form 149) on 10 April 2012, requesting a change in her late father's military records.  DFAS has checked with Debt and Claims and were advised that [the Applicant] has applied twice to the Army Review Boards Agency and twice she has been denied.  Upon review DFAS determined that [the Applicant's] concerns fall under the purview of the Army Review Boards Agency.  
12.  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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  

13.  Title 10, U. S. Code, section 1447(11) defines “dependent child” as a person who is (1) unmarried; and (2) who is under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution, or is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday or incurred on or after the 18th birthday but before the 22d birthday while pursuing a full time course of study or training; and (3), who is the child of a person to whom the Plan applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.

14.  Title 31 U. S. Code, section 3702, commonly referred to 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, U. S. Code, 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 FSM served in the Regular Army from 17 May 1946 to 29 February 1968. He was placed on the Retired List in his retired rank/grade of staff sergeant/E-6.  He was credited with over 21 years and 8 months of active service.   At the time of his retirement, the SBP did not exist. 

2.  Although the SBP was established in 1972, the FSM waited and enrolled in the program during the 1981-1982 Open Season.  He elected spouse and child coverage.  He died on 23 September 1993.  His widow would have been entitled to the SBP annuity.  However, his widow had predeceased him on 30 June 1993. 

3.  It appears because the applicant, who was born on 20 February 1970, had already turned 22 by the time the FSM died, she aged off and was ineligible for the SBP annuity.  Upon her mother's death and her aging off, there was no other eligible beneficiary notwithstanding the HRC letter prepared in 2012 that stated her permanent incapacitation determination was completed in 1990.

4.  By law, the annuity is payable to an eligible spouse until death and then to the surviving eligible children only if first a "spouse and children" election was made and second, a child is eligible if incapable of self-support because of mental or physical incapacity which existed before the 18th birthday or was incurred before age 22 during pursuance of a fulltime course of study or training in a recognized educational institution.  

5.  Although the applicant states she has spina bifida, there is insufficient evidence to show the proper medical statements and certification of incapacitation since birth were submitted to DFAS by the FSM prior to her 18th birthday.  After a review of the FSM’s records by HRC, the evidence shows that at or near her 20th birthday in 1990 she was determined to have permanent incapacitation.

6.  The question whether or not an applicant qualifies as a disabled child for SBP purposes is beyond the scope of this Board's authority.  However, because spina bifida is a congenital condition and the applicant's case has never been considered due to the Barring Act, it is appropriate as a matter of equity to correct the FSM's records to show the applicant filed her claim for an SBP annuity on 24 September 1993, the date after the FSM’s death. 

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 amendment of the ABCMR’s decision in Docket Number Docket Number AR20120009417, dated 18 December 2012, and AR20130008711, dated 4 February 2014.  As a result, the Board recommends that all Department of the 

Army records of the individual concerned be corrected by showing the applicant timely applied for the SBP annuity shortly after her father's death in September 1993 and her application was timely received and processed.



      _______ _   __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)                                         AR20140021359



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ABCMR Record of Proceedings (cont)                                         AR20140021359



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