IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150001912 


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 widow of a deceased former service member (FSM), requests correction of her late husband's records to show she applied for Active Duty Death Survivor Benefit Plan (SBP) for child-only coverage in a timely manner.

2.  The applicant states:

	a.  Her husband died while serving on active duty in Japan.

	b.  She requests correction of her SBP application date to reflect June 2007 when it should have been applied for in coordination with the Casualty Assistance Officer (CAO).

	c.  She moved to Madison, Alabama, in August 2007 and has been there ever since.  She was never informed or advised to apply for SBP after her husband's death.  She was not advised to receive counseling from a retirement services officer on SBP until November 2014.

	d.  After her husband died of injuries sustained in a vehicle accident on 12 May 2007, she immediately flew home to West Point, Mississippi, with her two small children to bury her husband.  A CAO was assigned and assisted her in her travel home and preparing for the funeral.  After the funeral she was assigned a local CAO who assisted her in applying for benefits.  The only benefits she was advised to apply for were social security and Department of Veterans Affairs (VA) Dependency and Indemnity Compensation which she receives.  She was never told about SBP or informed that it was an option until recently through a survivor outreach services program.

	e.  She was counseled by a retirement services officer and applied for SBP in November 2014.  She contacted the Defense Finance and Accounting Service and was told the Barring Act applies since it has been more than 6 years and her application would not be processed further.

	f.  She has exhausted all other avenues and is requesting assistance by the Board.

3.  The applicant provides:

* DD Form 1300 (Report of Casualty)
* marriage certificate
* Spouse Statement of Desired SBP Election Active Duty Death
* DD Form 2656-7 (Verification for Survivor Annuity), dated 21 November 2014
* Withholding Certificate for Pension or Annuity Payments
* direct deposit slip
* letter from the Commanding General, U.S. Army Space and Missile Defense Command/Army Forces Strategic Command, Huntsville, AL, dated 22 January 2015

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 and applicant married on 26 April 2001.  He enlisted in the Regular Army on 1 May 2001 for a period of 4 years and trained as a light wheel vehicle mechanic.  He was honorably discharged on 30 September 2004 for immediate reenlistment. He reenlisted on 1 October 2004 for 4 years.  He was promoted to staff sergeant effective 1 February 2007.

3.  On 12 May 2007, the FSM died from injuries sustained in a motor vehicle accident in Japan.

4.  The FSM's records contain a DD Form 261 (Report of Investigation Line of Duty (LOD) and Misconduct Status), dated 18 June 2007, which shows the FSM's death was in the LOD.

5.  The applicant provided:

	a.  a DD Form 1300, dated 15 August 2007, which shows she was the FSM's wife at the time of his death;

	b.  a DD Form 2656-7, dated 21 November 2014, which shows she requested SBP for child-only coverage.  She listed two children born on 17 November 2000 and 28 September 2002; and

	c.  an undated Spouse Statement of Desired SBP Election Active Duty Death which shows she elected child-only SBP coverage on behalf of her late husband.

6.  She also provided a letter from the Commanding General, U.S. Army Space and Missile Defense Command/Army Forces Strategic Command, Huntsville, Alabama, who states:

	a.  The applicant is the widow of a staff sergeant who died on 12 May 2007 of injuries sustained in a vehicle accident while stationed in Japan.

	b.  After her husband passed away she immediately flew home to Mississippi with her two young children to have the support of her family as she prepared to bury her husband.  A CAO traveled from Japan with her to see her through the funeral.  After the funeral, she was assigned a CAO to assist with applying for social security and VA benefits.  It was never mentioned to the applicant that she was also entitled to apply for SBP nor was she counseled on the election options.

	c.  Seven years later during a meeting with a survivor outreach services coordinator, she was made aware that SBP should have been applied for.  A meeting with a retirement services officer was scheduled and an application for SBP submitted.  On 9 January 2015, the Army Casualty Office explained that her application could not be further processed due to the Barring Act.  The representative stated this Act prohibited survivors from applying for SBP if the active duty death occurred more than 6 years ago.

	d.  He recommends the Board do justice to this surviving family who has endured so much and change the SBP application date to reflect June 2007 when it should have been completed with the CAO.

7.  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.

8.  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 LOD. 
These benefits are effective for a death on or after 10 September 2001.  A qualified death under the provisions of Title 10, U.S. Code, section 1448(d), as amended by Public Law 107-107, is a death of a member on active duty who died in the LOD or died not in the LOD but was retirement eligible.

9.  Public Law 108-136, enacted 24 November 2003, further expanded benefits under the SBP for the qualified survivors of eligible members who die in the LOD. 
It provided, in part, for an optional annuity when there is an eligible surviving spouse which was codified in Title 10, U.S. Code, section 1448(d)(2)(B).

10.  Title 10, U.S. Code, section 1448(d)(2)(B), states that in the case of a member described in paragraph (1) who dies on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2004 (i.e., 24 November 2003) and for whom there is a surviving spouse eligible for an annuity under paragraph (1), the Secretary may pay an annuity to the member's dependent children, if applicable, 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 instead of an annuity for the surviving spouse.

11.  Title 31, U.S. Code, section 3702, also known as the barring statute, 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 evidence shows the FSM died from injuries sustained in a vehicle accident on 12 May 2007 while serving on active duty in Japan.

2.  The applicant contends she was never informed or advised to apply for SBP after her husband's death.

3.  The law states that in the case of a member who dies on or after 24 November 2003 and for whom there is a surviving spouse eligible for an annuity, the Secretary may pay an annuity to the member's dependent children, if applicable, 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 instead of an annuity for the surviving spouse.

4.  It appears the applicant was not advised of this SBP entitlement and election option in this case.  When she learned she was entitled to apply for SBP and attempted to apply for Active Duty Death SBP for child-only coverage in November 2014, her request was denied due to the barring statute.

5.  Given the circumstances surrounding this case, and based on the applicant's eligibility for Active Duty Death SBP at the time of the FSM's death and her desired SBP election, it would be equitable to correct the FSM's records to show she applied for Active Duty Death SBP for child-only coverage in a timely manner.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant applied for Active Duty Death SBP for child-only coverage on 1 June 2007 and the request was accepted and processed by the appropriate office in a timely manner; and

	b.  paying the applicant the SBP annuity effective 13 May 2007, the day after the FSM's death.



      ___________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)                                         AR20150001912



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ABCMR Record of Proceedings (cont)                                         AR20150001912



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