PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            3 April 2003      
	DOCKET NUMBER:   AR2003085634

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Patrick H. McGann, Jr		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 that the records be corrected to show she applied for the Survivor Benefit Plan (SBP) annuity within the 6-year statutory time limit.

3.  The applicant states that her deceased spouse, a former service member (FSM), died only 6 weeks after being diagnosed with bone cancer.  She met with the Survivor Assistance Officer (SAO) shortly after the FSM's death.  The SAO helped her fill out the SBP application and mailed it for her.  She was in shock after the FSM's death and did not question the length of time it was taking to receive the annuity.  Just 2 years later, she lost her younger son to pancreatic cancer.  She shut down and ignored everything.  She had enough money to live on and did not pay attention to the fact she had not received the SBP annuity.  Years later, her daughter was going through some of the FSM's old papers and became aware that the applicant was not receiving the annuity.  It took a while but, with the help of the same SAO, she submitted a new application.  She was initially told the FSM's records had been purged, but she was then informed her application had been approved and a payment was made. She was shocked, then, when the Defense Finance and Accounting Service (DFAS) informed her that the payments already made would be withdrawn from her account.  

4.  The FSM’s military records show that he entered active duty as a commissioned officer on 5 July 1940.  He and the applicant married on 15 December 1944.  He retired on 1 July 1966.

5.  It cannot be determined when the FSM enrolled in the SBP; however, his Retired Pay Statement effective December 1985 showed SBP deductions were being taken from his retired pay.

6.  The FSM died on 21 March 1986.

7.  By letter dated 27 September 2002, DFAS informed the applicant that they received all the documentation needed to establish her SBP annuity and made      an initial payment of $32,304.92 to cover the period 22 March 1986 through           30 September 2002.  She apparently was sent two additional payments of $1,815.40 each on 1 November 2002 and 1 December 2002.

8.  By letter dated 6 December 2002, DFAS informed the applicant that they would be required to deduct $35,935.72 from her payment.  No reason was given.

9.  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. 

10.   Public Law 93-155, enacted 16 November 1973, extended the Open Season from 12 to 18 months (21 September 1972 through 20 March 1974).
11.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 through 30 September 1982.  

12.  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.

13.  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.  Although DFAS's 6 December 2002 letter to the applicant did not mention why they had to recoup the SBP annuity payments already made to her, the Board presumes it was because her claim was not processed within the 6-year statute of limitations.  However, 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 appears to have not been of major importance in this case.  Although the applicant was told at one point that the FSM's records had been purged, it appears that DFAS was able to locate sufficient records to calculate the SBP annuity due her.  
3.  The Board concludes that such a records correction would be equitable in this case.  The FSM had enrolled in the SBP during one of the Open Seasons and paid SBP premiums until his death.  The applicant received the help of an SAO in submitting a claim for the annuity and trusted the Government to act on her request. Shortly after the FSM's death, the applicant suffered the shock of her younger son's death.  As a result, since she had enough money to live on, she paid no attention to the fact she was not receiving the SBP annuity.  More than 10 years later her daughter noticed the omission; however, the barring statute then effectively prohibited DFAS from paying her the annuity.  To deny her the SBP annuity now, when the FSM paid for it and expected her to have it, would be an injustice.  

4.  It would be equitable to show that the applicant submitted her SBP annuity claim on 1 April 1986, thereby entitling her to the SBP annuity.  

5.  In view of the foregoing, the 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 applicant completed and returned the SBP annuity claim form and related documents to the proper office on 1 April 1986 and that they were received and processed by the proper office in a timely manner.

2.  That the applicant be paid an annuity based upon the above correction.

BOARD VOTE:  

__sac___  __rwa___  __phm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Samuel A. Crumpler__
		        CHAIRPERSON

INDEX

CASE ID	AR2003085634	
SUFFIX		
RECON		
DATE BOARDED	20030403	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.