RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  9 March 2004
	DOCKET NUMBER:  AR2003091131

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Shirley Powell		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that she, as the spouse of the deceased former service member (FSM), be granted a Survivor Benefit Plan (SBP) annuity.  

2.  The applicant states that she is entitled to SBP and Dependency and Indemnity Compensation (DIC).  

3.  The applicant provides copies of the FSM's Death Certificate; Marriage Records; DD Form 1884 (Application for Annuity Under the Retired Service's Family Protection Plan [RSFPP] and/or SBP); and several additional documents pertaining to her case.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 10 April 1996, the date of the FSM's death.  The application submitted in this case is dated 14 May 2003.  

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The FSM's military records show that he enlisted on 26 August 1960 and was married on 27 January 1962.  He continued to serve until he was honorably discharged on 20 February 1970.

4.  After a break in service, he reenlisted on 23 October 1974 where he continued to serve.  He was promoted to sergeant first class (SFC/E-7) on 15 April 1980. 

5.  The FSM’s personnel records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 9 June 1982.  Part IV (SBP Election) of the DA Form 4240 shows that the FSM elected reduced amount coverage for his spouse in the amount of $300.00.

6.  On 31 August 1982, the applicant was placed on the Army of the United States Retired List effective 1 September 1982, in the rank of SFC.

7.  The FSM died on 10 April 1996.

8.  The applicant provided copies of several documents that show she applied for DIC and was awarded a VA pension.

9.  Information provided by the Defense Finance and Accounting Service (DFAS) revealed that the FSM had an SBP election reflected on his account.

10.  The applicant provided documentation to show that she applied for unpaid compensation and SBP.  

11. On 6 May 2003, the Chief, Army Retirement Services responded to an inquiry pertaining to the applicant's SBP annuity.  The applicant was informed that she did not report the FSM's death until October 2002.  She was also informed that the Statute of Limitations bars the Army from processing an SBP annuity request that is more than 6 years after the date the request should have been submitted, the date of the military member's death.  The applicant was informed that she may request that the Army Board for Correction of Military Records (ABCMR) correct her spouse's military records to show she requested SBP at the date she was first eligible.   

12.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

13.  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.

14.  Pride v. United States, 40 Fed Cl. 730 (1998) provided that if a Board for Correction gives rise to the claim, the barring statute does not start to run until the Board orders the correction.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the FSM was placed on the Retired List, applied for SBP survivor benefits, and elected reduced amount coverage.  Records at DFAS show that the FSM continued to pay SBP premiums until his death.  

2.  The FSM died on 10 April 1996 and the applicant failed to report the FSM's death until October 2002.  The applicant was informed by the Chief, Army Retirement Services that the Statute of Limitations bars the Army from processing an SBP request that was more than 6 years old after the date of the military member's death.  It appears that the applicant was not aware of this statute.  Therefore, in the interest of justice, the Board recommends that the FSM's records be corrected to show that the applicant was entitled to SBP annuity effective 10 April 1996, the date of the FSM's death.  It would be inequitable to deny the applicant the SBP annuity because of the passage of time.   

BOARD VOTE:

__sc____  ___be___  __sp_____  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant applied for and that she be paid an annuity based on the FSM's election to participate in the SBP retroactive to 10 April 1996, the date of the FSM's death.  

		____Samuel A. Crumpler____
		        CHAIRPERSON

INDEX

CASE ID	AR2003091131	
SUFFIX		
RECON		
DATE BOARDED	20040309	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19820831	
DISCHARGE AUTHORITY	AR  635-200.. CHAP 12	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	346	
2.		
3.		
4.		
5.		
6.