RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00641 (DECEASED) COUNSEL: NONE (APPLICANT) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His deceased father’s records be corrected so that he is eligible for the Survivor Benefit Plan (SBP) annuity. ________________________________________________________________ APPLICANT CONTENDS THAT: He is under the permanent legal guardianship of his sister, and he and his sister were unaware of the SBP entitlement. His father retired on 31 Oct 61, after serving more than 28 years of active military service, and immediately enrolled in the SBP. He states that no one from the Defense Finance and Accounting Office (DFAS) or the Department of Veterans Affairs (DVA) Casualty Assistance Office gave them any information regarding benefits and/or entitlements. He lived under the care of his parents due to his permanent medical disability, and is now the only surviving beneficiary of his father’s SBP. Both of his parents passed away in January of 2006. On 22 Oct 12, his sister, submitted copies of their parents’ death certificates to DFAS, hoping to receive some type of benefit or entitlement, but received no response. With the help of his attorney, he prepared all the necessary documentation to properly claim the SBP entitlement and submitted this information to DFAS. DFAS stated that the claim was denied because it was not filed within six (6) years following his father’s death. In support of his request, the applicant provides a letter from an attorney from the Legal Assistance Office, copies of his father’s DD Form 214, Armed Forces of the United States Report of Transfer or Discharge; his mother and father’s death certificates, Standard Form 1174, Claim for Unpaid Compensation of Deceased Member of the Uniformed Service; DD Form 2656-7, Verification for Survivor Annuity; DD Form 137-5, Dependency Statement – Incapacitated Child Over Age 21; Military Dependent Identification Card; medical evaluation letters, and various other documents associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Prior to his 1 Nov 61 retirement, the former member did not enroll in the Retired Serviceman’s Family Protection Plan (RSFPP). During the SBP open enrollment period authorized by Public Law (PL) 97-35 (1 Oct 81 – 30 Sep 82), the former member elected maximum spouse and child coverage. The Air Force Accounting and Finance Center (AFAFC) records reflect the former member had a “Helpless Child.” On 8 Jan 06, the former member’s spouse died. On 15 Jan 06, the former member died. Additional relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFFF recommends denial. DPFFF indicates that there is no evidence of an Air Force error in this case. DPFFF states that the Barring Act limits payment of SBP annuities to those claims received within six years of the participant’s death. It is unfortunate the applicant had no further contact with DFAS after receipt of their 18 Oct 10 letter; however, his sister’s failure to properly act on his behalf, are not grounds to waive the Barring Act. The claim for late payment, previously reviewed by the Deputy General Counsel at the DFAS-Denver Center, reported in their 10 Aug 02 opinion states that there is no authority to waive the six-year statute of limitation. DPFFF further states that there is no evidence the applicant or any other person responsible or concerned for his wellbeing submitted an annuity claim within the six-year time limit. Had a valid claim been submitted before Jan 12, the applicant would be receiving monthly SBP payments of approximately $955. The complete DPFFF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s legal representative states in part, based on the simple fact that, due to the applicant’s permanent mental impairment (autism), the statute of limitations should be tolled. Title 28, United States Code (USC), Section 2501, states, in relevant part, “A petition on the claim of a person under legal disability…at the time the claim accrues may be filed within three years after the disability ceases.” He asks that the Board waive the six-year statute of limitations as a matter of equity and justice so that the applicant may inherit the money that his father specifically withheld from his pension and designated for his son’s benefit. The applicant’s sister states that her brother has been mentally disabled since birth, and deemed to be incapable of self-support due to a mental incapacity that existed before his 21st birthday. Her father enrolled in the SBP and subsequently elected maximum spouse and child coverage during an SBP open enrollment, and had a “Helpless Child.” Her mother predeceased her father by approximately seven days, leaving behind an adult permanently dependent and mentally disabled. She submitted the proper paperwork in a timely manner upon learning of the SBP annuity that was paid into to aide in the care of her brother. Her father entered into the program in good faith to aide and assist his wife and his permanent dependent son. The authority to waive the six-year statute of limitation should be based on the fact that any and all information or requests were mailed to an adult who has been and will be mentally disabled to his death. Her brother cannot be held to a standard he cannot obtain due to his mental state or condition, nor should he be denied, due to the fact his sister, a non-military civilian, did not receive these requests. Attached to her response were duplicate copies of the applicant’s 31 Mar 80 and 13 Dec 10 mental evaluations. The complete response, with attachments, is at Exhibit D. ________________________________________________________________ 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 an injustice. After thoroughly reviewing the documentation submitted in support of this appeal, we believe that relief is warranted. In this respect, we note that the former member elected maximum spouse and child coverage during an SBP open enrollment period authorized by PL97-35 and paid the associated premiums to ensure an annuity was available upon his death. In order to establish the annuity, the applicant was required to submit a claim for the SBP within six years following his father’s death. However, there is no evidence the applicant or any other person responsible or concerned for his well-being submitted an annuity claim within the six-year time limit. As a result, DFAS has refused to pay the applicant an annuity and DPFFF recommends denial of his application, stating that it is untimely, as he did not file a valid claim within the six years prescribed by 31 USC § 3702(b). While the evidence before us indicates that the applicant failed to submit the claim for the annuity, it also reflects that he was incapable of self-support. Therefore, considering the applicant’s permanent medical disability, it is clear that he did not understand the steps necessary to request the SBP annuity. Additionally, we find it highly unlikely that the applicant or his sister (as his legal trustee) would have knowingly elected not to pursue this important benefit, which the former member had paid premiums for many years. While there appears to be no Air Force error in this case, in balancing the equities in this case, we find that justice can best be served by correcting the former member’s records as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to FORMER MEMBER, be corrected to show that on 16 Jan 06, his son (APPLICANT) submitted a valid claim for payment of the Survivor Benefit Plan (SBP) annuity under the provisions of Title 10, United States Code, Chapter 73, and the aforesaid application was correct and complete, including all necessary documentation of dependency. ________________________________________________________________ The following members of the Board considered Docket Number BC-2013-00641 in Executive Session on 7 Nov 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2013-00641 was considered: Exhibit A. DD Form 149, dated 1 Feb 13, w/atchs. Exhibit B. Letter, AFPC/DPFFF, dated 7 Jun 13. Exhibit C. Letter, SAF/MRBC, dated 21 Jun 13. Exhibit D. Letter, Applicant, 2 Jul 13, w/atch. 1 2