RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03521
		INDEX CODE:  137.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The widow of the former service-member be entitled to receive the Reserve Component Survivor Benefit Plan (RCSBP) annuities.

Examiner’s Note:  The applicant is the daughter of the deceased former service-member and has obtained power-of-attorney to act on behalf of her mother who is legally blind.

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APPLICANT CONTENDS THAT:

Her father's sudden death left her mother emotionally distraught.  It was not realized until years later that her mother was unable to manage her daily affairs.  Approximately two and one-half years ago her mother's condition worsened and she could no longer live alone.  Her mother moved in with a friend.  For years, her mother denied any family members access to her home.  When she was finally allowed to enter her mother's home, she discovered that the floor of her mother's home and every surface was covered with old mail, periodicals and packages.  She also found undeposited checks, unopened bank statements, utility shut-off notices, and enormous credit card bills for frivolous purchases.  Many of the packages were unopened among the debris.  Two letters from the Defense Department regarding her father's military benefits were also found.  The second document indicated that her mother had inquired about the benefits by phone and was sent a series of forms to complete, sign and return.  Her mother is legally blind and can only read with great effort and difficulty.  Completing the provided forms would be nearly impossible for her to do and asking for assistance was emotionally untenable.  Neither piece of correspondence indicated a deadline.

She completed the SBP forms for her mother.  A SBP representative explained that unless she had power of attorney for her mother, she could not submit the paperwork on her mother's behalf.  She was not able to obtain power of attorney until March 2006 when her mother was scheduled for surgery.  Her mother was still not receiving SBP annuities.  An SBP representative recommended she bring her information to his Denver office for review.  Again, timeliness was not mentioned.  On 27 Aug 07, she met with the SBP representative and filed an application on her mother's behalf.  

In support of her application, the applicant submits her personal statement, a letter from the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL), a letter from the Air Force Casualty Assistance office, a durable power of attorney, a letter from the annuity pay operations office, a verification for survivor annuity form (DD Form 2656-7, a direct deposit sign up form, a withholding certificate for pension or annuity payments (W-4P), a claim for unpaid compensation of deceased member of the uniformed services, and her father's death certificate.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

According to the information provided by the Air Force office of primary responsibility, the former service member and spouse were married on 14 Feb 49.  Defense Finance and Accounting Service (DFAS) records indicate that the member elected spouse only coverage based on full retired pay (immediate annuity) when he became eligible to receive retired pay except for attaining age 60.  The former service member's retired pay commenced on 29 Dec 80 and RCSBP costs were deducted from his pay until 1 Dec 95 death.  If the widow or someone acting on her behalf had submitted a valid claim for payment before 1 Dec 2001, she would be receiving monthly SBP payments of approximately $360.  

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AIR FORCE EVALUATION:

HQ AFPC/DPSIAR recommends denial of the applicant’s request.  DPSIAR states payment of SBP annuities are subject to the Barring Act.  DPSIAR opines there is no evidence the applicant, the member's widow, or any other person responsible or concerned for this widow's well-being submitted an annuity claim within the six-year time limit.  The widow was notified by the DFAS-DE on 3 Apr 96 and the Dover Air Force Base Casualty office on 5 Mar 97 of her eligibility to apply for the SBP annuity, but she did not respond.  Furthermore, the applicant provided no medical documentation showing that her mother was incompetent or incapable of handling her personal affairs during the six-year period following the member's death.  The power of attorney obtained to handle her mother's affairs was not obtained until 2006 – nine years after the member's death.  The claim for late payment was reviewed by DFAS-CL and a letter was sent to the widow on 17 Sep 07, stating that there is no authority to waive the six-year statute of limitations.  

The complete DPSIAR evaluation is at Exhibit B.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In her response dated 2 Jan 08, the applicant submits several letters from medical doctors and her attorney in support of her earlier claim regarding her mother's incapability to handle her own affairs over the past six years.  

Her family was truly unaware of the extent of her mother's disability until the May 2005 intervention.  She reiterates many of her earlier contentions of being unaware of her mother's mental condition.  

The applicant's complete response, with attachments, is at Exhibit D.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  It appears that mental medical conditions prevented the former servicemember’s spouse from applying for the RCSBP annuities due to her upon her husband’s death.  Therefore, we recommend that the records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 2 Dec 95 a valid claim for payment of RCSBP annuities was submitted by the surviving spouse, XXXXXXXXXX.  

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The following members of the Board considered AFBCMR BC-2007-03521 in Executive Session on 14 Feb 08, under the provisions of AFI 36‑2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Oct 07, w/atchs. 
    Exhibit B   Letter, HQ AFPC/DPSIAR, dated 9 Nov 07.
    Exhibit C.  Letter, SAF/MRBR, dated 7 Dec 07.
    Exhibit D.  Letter, Applicant, dated 2 Jan 08 w/atchs.