RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-02107

  (DECEASED)					COUNSEL:  NONE
  (APPLICANT)
							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

She be granted a waiver of the six year statute of limitations of the Barring Act, Title 31, USC 3702(b) in order to receive arrears of pay/annuity from her deceased husband’s Reserve Component Survivor Benefit Program (RCSBP).

APPLICANT CONTENDS THAT:

She married her late husband on 3 Sep 49 and remained married to him until his death at the age of 88 [sic], on 3 Mar 03 [sic].  Her husband retired from the Air Force Reserve in 1966 and began receiving military retirement pay in October 1975.  He elected the spouse and child coverage under the RCSBP and paid for this annuity for 20 years.  The former member passed away after a 10 year decline in health due to Alzheimer's disease.  She contacted the VA about funeral arrangements.  She was not informed that she needed to contact Defense Accounting and Finance Service (DFAS) for continuation of survivor benefits.

Her mental state and physical condition after caring for her husband left her physically, mentally and emotionally drained and unable to function with day to day activities.  In 2014, she requested SBP Benefits.  On 4 Nov 14, she received a letter from DFAS denying her claim.  The letter also notified her that she could request an appeal.  Consequently, she contacted her US Representative for assistance.  In January 2015, her appeal was denied so she is now requesting the Board reinstate her SBP annuity.

The applicant provides a letter, dated 30 Mar 15, from the Counseling Services of Dothan Alabama that states in part,  after the former member’s death the applicant underwent significant emotional stress and became mentally incapacitated and very depressed; her mental state was unstable.  She, like many veteran widows, was not aware of the benefits she had from being the wife of a retired veteran.  The VA did not contact her regarding her survivor benefits and therefore she did not file for SBP benefits in a timely manner.  Had she not been in such a state of mind she would have checked with the VA regarding benefits that she was entitled to.

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

STATEMENT OF FACTS:

According to the former member’s WD GAO Form 100, Separation Qualification Record, he served on active duty from 15 Jul 41 to 21 Mar 46.

On 15 Jul 66, the former member was placed on the reserve retired list.  Upon reaching age 60, he was retired for pay effective 7 Oct 75 and credited with 37 years, 2 months, and 22 days for pay.

According to information provided by DFAS, the former member elected SBP for spouse and child on his retirement and paid SBP premiums until his death on 28 Feb 03.

According to the former member’s Certificate of Death from the State of Texas issued on 7 Mar 03, reflects he was married at the time of his death on 28 Feb 03.

According to information provided by DFAS, the death of the former member was reported by letter on 6 Oct 14.  The notification included a claim for SBP Annuity from the applicant.

In a letter dated 4 Nov 14, DFAS denied the applicant’s request due to the six year barring statute law.  The applicant was advised of her right to submit an appeal of DFAS’s determination to the Defense Office of Hearings and Appeals (DOHA) and advised any appeal received after 30 days could not be accepted.

On 20 Jun 15, the applicant completed an SBP Marital Status Affidavit (Exhibit C).

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit D.

AIR FORCE EVALUATION:

DFAS-JFBEB does not make a recommendation with regard to granting a waiver of the six-year statute of limitations (Barring Act) to allow the applicant to receive arrears of pay (AOR) and SBP annuity benefits.  The former member did elect the SBP annuity for the applicant and he did pay the SBP premium from his retirement until his death.  In a letter, dated 4 Nov 14, DFAS denied the applicant’s claim for the SBP annuity because her claim was not submitted timely in accordance with Title 31, United States Code, 3702(b), which provides a 6-year statute of limitation for filing claims against the Government.  In this regard, DFAS did not receive any correspondence or communication from the former member’s family until 9 Oct 14.  The former member did elect the SBP annuity for his spouse and he did pay for the SBP annuity from his retirement through his death.  A congressional inquiry was made on behalf of the applicant by Representative Blake Farenthold, and on 3 Dec 14, DFAS informed him that the letter sent to the applicant from DFAS dated 4 Nov 14 was incorrect.  The letter omitted the paragraphs providing details regarding waiving the six year Barring Act.  Since the applicant was not provided a denial letter that provided her both Defense Office of Hearings and Appeals (DOHA) appeal rights and the information regarding waiver of the six year Barring Act, another letter was sent to the applicant on 4 Jan 16 that provided her appeal rights.  She was given 30 days from the date of the letter to file an appeal.

A complete copy of the DFAS-JFBEB evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 8 Jan 16 for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

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 the former member elected spouse and child SBP coverage 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 the former member’s death.  However, there is no evidence the applicant submitted an annuity claim within the six-year time limit.  As a result, DFAS has refused to pay the applicant an annuity stating that it is untimely, as she did not file a valid claim within the six years prescribed by 31 USC § 3702(b).  The applicant contends that her mental state left her physically, mentally and emotionally drained and unable to function with day to day activities.  She also provides a letter dated 30 Mar 15, from the Counseling Services of Dothan Alabama stating that after the former member’s death, she underwent significant emotional stress, became mentally incapacitated and was very depressed.  In balancing the equities in this case, we find it more likely than not that the applicant has been the victim of an injustice.  Moreover, we do not find it reasonable that she would have knowingly elected not to pursue this important benefit.  In addition, although the applicant states her appeal was denied by DFAS, she did not provide evidence to show that it was.  Nevertheless, this Board normally insists on exhaustion of subordinate administrative reviews before providing relief.  However, we believe her mental state may have led to the misunderstanding of otherwise clear instructions.  Therefore, being mindful of administrative economy, we recommend the applicant’s record be corrected to the extent indicated below.     

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 8 March 2003, the applicant submitted a Survivor Benefit Plan annuity claim following the death of her spouse.

The following members of the Board considered AFBCMR Docket Number BC-2015-02107 in Executive Session on 2 Mar 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

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

	Exhibit A.  DD Form 149, dated 3 May 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Marital Status Affidavit, dated 20 Jun 15.
	Exhibit D.  Memorandum, DFAS-JFBEB, dated 5 Jan 16.
Exhibit E.  Letter, SAF/MRBR, dated 8 Jan 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.