PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AC

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	M .		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests entitlement to a Survivor Benefit Plan (SBP) annuity.

3.  The applicant states her spouse, a former service member (FSM), died while on active duty after completing 20 years of service.  She applied for payment of SBP, but her application was disapproved by the Defense Finance and Accounting Service - Denver (DFAS-DE) due to the Barring Act, which imposes a 6-year statute of limitations on filing claims against the Government.  She was never informed of her right to apply for SBP benefits in previous inquiries about her benefits.

4.  The FSM’s military records show that after having prior Regular Army service, he reenlisted in the Army on 25 August 1972.

5.  He married the applicant on 13 September 1974.

6.  The FSM committed suicide on 17 June 1991 while stationed at Fort Stewart, GA.  The applicant was residing in Hawaii at the time.  There is no evidence that a Casualty Assistance Officer was assigned to help her.

7.  Apparently the first inquiry the applicant made was through her attorney on  20 November 1991.  That inquiry is not available; however, the response, from the Fort Stewart, GA Army Medical Department Activity, is available.  The inquiry apparently concerned itself primarily with the line of duty investigation into the FSM’s death.

8.  On 14 January 1993, the applicant’s Representative in Congress, in response to an inquiry from her attorney, sent an inquiry to the Medical Corps Commander, Fort Stewart, GA.  In it he requested a response so that she “may see her benefits as a military widow fulfilled.”

9.  On 8 February 1993, her Representative in Congress sent an inquiry to the Acting Secretary of the Army.  In it he stated that she “has been waiting for almost 2 years for a decision regarding her rightful benefits.”

10.  On 29 March 1993, the Congressional Inquiry Division, Office of the Secretary of the Army replied to that inquiry.  That office responded that the Line of Duty Investigation was provided to the Department of Veterans’ Affairs (DVA) to assist in making a decision regarding her entitlement to Dependency and Indemnity Compensation but does not mention that she would also be entitled to SBP benefits.

11.  In September 1997, the VA referred the applicant to the Fort Shafter, HI Retirement Services Office for assistance.  
12.  On 9 September 1997, the Retirement Services Office requested the Headquarters, Department of the Army Casualty Branch verify that the FSM had over 22 years of active duty because, if that were correct, the applicant should be entitled to payment of the SBP annuity.  The FSM’s 22 years of active duty were verified on 25 September 1997 and on 26 September 1997 the applicant applied for the SBP annuity.

13.  On 24 March 1998, DFAS-DE denied the applicant’s claim for an SBP annuity due to her filing for it after the 6-year statute of limitations had run out.

14.  In the processing of this case, an advisory opinion (SEE ATTACHED) was obtained from the Army Retirement Services office.  That office notes that government error is quite apparent in this case.  It was obvious that inadequate survivor assistance was provided to her.  The steady stream of inquiries made by her attorneys to many government agencies, including the Department of Defense, failed to provide her with the information that she was entitled to and needed to apply for the SBP.  Only because the VA suggested she apply for SBP did she finally learn of it and apply, but too late.  A review of the inquiries show numerous references were made to her “not receiving her rightful benefits.” While none of these mentioned SBP specifically, it is certainly among her most important entitlements.  If there is a way for the Board to correct the records to meet the 6-year statute of limitations, it requests that it do so.

15.  Public Law 92-245, the SBP, enacted 21 September 1972, 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.  The surviving spouse and dependent children of a member who dies on active duty after becoming eligible to receive retired pay are automatically entitled to an SBP annuity.

CONCLUSIONS:

1.  The FSM was a retirement-eligible active duty member who died on 17 June 1991 while assigned to Fort Stewart, GA.

2.  The applicant, his surviving spouse, was residing in Hawaii at the time of his death and did not receive adequate survivor assistance counseling.

3.  The first evidence that the applicant requested her benefits as a military widow from a Department of Defense agency was a 14 January 1993 letter from her Representative in Congress, in response to an inquiry from her attorney, to Fort Stewart, GA.  SBP benefits are not specifically mentioned, but it is reasonable to presume that Fort Stewart should have looked into all her possible entitlements as the widow of a retirement-eligible active duty member at this time.

4.  By September 1997, when the applicant was finally referred to a Retirement Services Office for assistance, notified that she was entitled to SBP benefits and formally applied for it, she was told she had applied outside the 6-year statute of limitations.

5.  The advisory opinion noted that government error was quite apparent in this case and that it took the Department of Veterans’ Affairs to tell her she was entitled to a Department of Defense benefit.

6.  When Congress authorized the creation of the correction boards, it specifically spoke of correcting error and removing injustice.  This would appear to be a classic example of what the Congress had in mind.

7.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant applied for an SBP annuity on 14 January 1993, thereby entitling her to receipt of the SBP annuity.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON