DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

WJH:djc
Docket No. 10869-06
7 January 2008

From:	Chairman, Board for Correction of Naval Records
To:	Secretary of the Navy

Subj:	REVIEW OF NAVAL RECORD ICO

Ref:	(a) Title 10 U.S.C. 1552
	
	Encl:	(1)	Original DD Form 149 w/attachments
		(2)	NPC Memo dtd 7 Feb 07
		(3)	DFAS ltr dtd 28 Jul 06
		(4)	Supplementary materials submitted
			in support of original DD 149
		(5)	Excerpts from Subject’s naval record

1.	Pursuant to the provisions of reference (a), Subject’s surviving spouse, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that after Subject’s death on 4 June 1998, Petitioner submitted a written request for Survivor Benefit Plan (SEP) annuity.

2.	The Board, consisting of Mr. Pfeiffer, Mr. Ruskin, and Mr. Exnicios, reviewed Petitioner’s allegations of error and injustice on 03 January 2008 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies. The Board also considered an advisory opinion prepared by the Bureau of Naval Personnel, Casualty Assistance Office, a copy of which is attached as enclosure (2)

3.	The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

	a.               were married on 31 August 1962 and	
	
	b.	transferred to the Retired List on 1 July 1974. At that time, he enrolled in the Survivor Benefit Plan (SBP) in the “spouse” category of coverage. He began paying the “spouse” category
	premiums.

C  died on 4 June 1998. At that time, he was still enrolled in the “spouse” category of coverage. He had paid “spouse” category premiums from his initial enrollment in 1974 until his death. He was still married to at the time of his death
	
d.	Petitioner, did not make a claim for SBP benefits for a period in excess of six years. Records indicate that when her husband died, she was 68 years old and neglecting her health and personal affairs such that state Adult Protective Service intervention was necessary.

e.	In June, 2006, a private fiduciary acting on behalf of Petitioner applied to the Defense Finance and Accounting Service (DFAS) seeking the SBP annuity for Petitioner. DFAS responded that the claim “must be denied due to (exceeding) the Statute of Limitations.” See enclosure (3)

f.	On 4 December 2006, acting on behalf of Petitioner applied to the Board for Correction of Naval Records seeking a change to entitle Petitioner to SBP benefits. She essentially argued that the six year limitation should be forgiven because of the Petitioner~ mental and physical health. See enclosure (1)

g.	later supplemented the original application with documentation that shows Petitioner has been admitted to the hospital on multiple occasions due to self neglect. Social worker home visits before her husband’s death showed unhealthy and cluttered living conditions. Medical examinations after his death showed Petitioner suffered from alcohol and nicotine abuse. See enclosure (4)

h.	Per enclosure (2), the Bureau of Naval Personnel, provided an advisory opinion recommending that no relief be granted. The advisory opinion points out that a claim against the government must be received within 6 years after the claim accrues. There is no evidence that made an SBP claim within 6 years of her spouse’s death.

Docket No. 10869-06

CONCLUSION

Upon review and consideration of all the evidence of record, and notwithstanding the opinion expressed in enclosure (2).  the Board finds the existence of an injustice warranting corrective action The Board relies heavily on the evidence that enrolled in SBP in 1974 and paid (spouse) premiums from the time of his initial SBP enrollment until the time of his death. In general, the Board was of the opinion that in a case where SBP premiums are faithfully paid by a retiree for spouse coverage, after the retiree dies the surviving spouse should receive a SBP annuity. The Board carefully considered DFAS’s interpretation and application of the six year limitation on claims against the government. However, rather than mechanically applying the limitation, the Board concludes that the six year limitation is intended to protect the government from being burdened with the obligation to keep records which would be required to adjudicate claims beyond a six year period. Here, the Board concludes, the records still exist which indisputably show that elected and paid for spouse SBP protection. Additionally, the evidence of Petitioner’s poor physical and mental health militate in favor of excusing her dilatoriness. After a careful review of all the evidence, the Board unanimously concludes that the record should be changed to show that made a timely claim for SBP benefits as required under the regulations governing SEP.

RECOMMENDATION:

That Subject’s naval record be corrected, where appropriate, to show that:

a.	On 5 June 1998, the day after her husband’s death, submitted a proper application to DFAS for commencement of
the Survivor Benefit Plan (SBP) annuity.

b.	A copy of this Report of Proceedings will be filed in Petitioner’s naval record.

4. It is certified that 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.

ROBERT D. ZSALMAN	WILLIAM J. HESS, , III
Recorder	Acting Recorder

Docket No. 10869-06

5.	The foregoing action of the Board is submitted for your review and action.

W.	DEAN PFEIFFER
Executive Director

Reviewed and approved:

Robert T Call
Assistant General Counsel
Manpower and Reserve Affairs)