PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 October 2001                   
	DOCKET NUMBER:   AR2001061427

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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, on behalf of her mother, the spouse of a deceased former service member (FSM), that the military records be corrected to enable her to collect the Survivor Benefit Plan (SBP) annuity retroactive to 1983 when the FSM died.

3.  The applicant states that her mother, who does not speak English, had no knowledge that the FSM had paid into the SBP.  The Defense Finance and Accounting Service (DFAS) erred when they did not notify her, when she informed the Army of his death, that she was eligible to receive the annuity.  Her mother did not discover she was entitled to the benefit until September 2000 while discussing VA benefits with a VA representative.  Her mother is now 90 years old and it is unfair that the barring statute limits the filing for the SBP to six years from the FSM’s date of death which means she is no longer eligible to receive it.

4.  The FSM’s military records were lost or destroyed in the National Personnel Records Center fire in 1973.  The information contained herein was obtained from alternate sources.

5.  The FSM retired on 1 November 1955 after completing over 24 years of active service.  In June 1973, he enrolled in the SBP for spouse and child coverage, full base amount.  He died on 23 March 1983.  His Army Retired/Annuitant Pay Statement shows he was paying SBP premiums.

6.  On 21 September 2000, the FSM’s spouse applied by letter for the SBP annuity.  DFAS sent her an annuity claim package.  On 8 March 2001, the FSM’s spouse completed the claim package to include the Application for Annuity under the Retired Serviceman’s Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP).  On 19 March 2001, DFAS sent her a notice that her first SBP payment was $11,019.00 and she would receive an account statement containing a breakdown of her monthly annuity pay within 30 days.  DFAS has since indicated to the Board’s analyst that this letter was in error, the FSM’s spouse was not eligible to receive the annuity since she applied after the 6-year statute of limitations, and the $11,019.00 was most likely a refund of the premiums paid by the FSM rather than an initial payment of the SBP annuity.

7.  Public Law 92-425, 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.  It declared a          12-month Open Season for those members who retired prior to enactment of the law. 

8.  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.

9.  On 17 October 1998, the National Defense Authorization Act for Fiscal Year 1999 (NDAA FY 99) became law.  Section 545(c) required the Department of Defense (DoD) to submit a report to Congress concerning the 6-year statute of limitations contained in Title 31, U. S. Code, section 3702(b), commonly referred to as the barring act.  The Secretary of Defense was to make a recommendation whether it was appropriate for the Secretaries of the military departments to have authority to waive that limitation in selected cases involving implementation of decisions of the Secretary of a military department under chapter 79 (Correction of Military Records) of Title 10, U. S. Code.  In its report, DoD did not recommend that the Secretaries of the military departments have specific statutory authority to waive the 6-year limitation in Title 31, U. S. Code, section 3702 in such cases. DoD noted that there presently exists in current law substantial authority to counteract the effects of the statute of limitations in the context of military records corrections.  DoD also noted that Title 10, U. S. Code, section 1552(g), which was amended in 1998 to expand the definition of “military record,” now provides discretionary authority to change records to show a valid submission of a claim by a member or beneficiary within the period prior to expiration of the statute of limitations.  Therefore, section 1552 already contains the authority necessary to take action that will, in effect, waive the 6-year limitation in a wide spectrum of cases.

CONCLUSIONS:

1.  In accordance with Title 10, U. S. Code, section 1552(g), as cited in the DoD NDAA FY 1999, Section 545(c) Review of the Barring Act Report, the Board may change records to show a valid submission of a claim by a member or beneficiary within the period prior to the expiration of the statute of limitations.  

2.  At least one of the reasons behind the barring statute was not of major importance in this case.  The applicable records were readily accessible and the FSM’s spouse’s case was not difficult to prove.  

3.  The Board concludes that such a records correction would be equitable in this case.  The FSM had paid for SBP spouse and child coverage since 1973 when he first had the opportunity to enroll.  He paid SBP premiums until his death.  His spouse was 72 years old at the time of his death, in addition to which she did not speak English.  It is reasonable to presume that she did not know what the entry “SBP” on his Army Retired/Annuitant Pay Statement meant and it appears that no survivor assistance officer assisted her with benefits counseling at the time of his death.  She was not made aware she was entitled to the SBP until 18 years later when a VA representative provided assistance to her.  To deny her the SBP annuity now would be an injustice.  

4.  It would be appropriate to show that the applicant’s mother, the FSM’s spouse, submitted the DD Form 1884 on 1 April 1983, thereby entitling her to the SBP annuity.  If the FSM’s SBP premiums have been refunded to her, it would be proper to recoup them prior to initiating the SBP annuity.  

5.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM’s spouse completed and returned the         DD Form 1884 and related documents to the proper office on 1 April 1984 and that they were received and processed by the proper office in a timely manner.

2.  That the applicant and her mother, the FSM’s spouse, be advised that DFAS will be instructed to collect any SBP costs due. 

3.  That the applicant’s mother, the FSM’s spouse, be paid an annuity based upon the above corrections retroactive to 23 March 1983, the date of the FSM’s death.

BOARD VOTE:  

__jhl___  __mdm___  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann H. Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061427	
SUFFIX		
RECON		
DATE BOARDED	20011011	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.