RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04310

XXXXXX	COUNSEL: NONE
	(DECEASED SERVICE MEMBER)

XXXXXX	HEARING REQUESTED: YES
	(APPLICANT)

APPLICANT’S REQUEST

The applicant is the granddaughter of the deceased service member (JG).  She is requesting corrective action that will allow JG’s disabled son (MG) to receive an annuity under the Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

Due to his disabilities, MG did not comprehend how to apply for his annuity.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

JG was an Air Force lieutenant colonel (O-5) who retired from active duty on 1 Oct 60.  MG was his lifetime beneficiary under the SBP, due to a permanent disability acquired before age 18.  JG paid SBP premiums until his death on 12 Feb 05.

On 8 Feb 17, on MG’s behalf via power-of-attorney, the applicant wrote the Defense Finance and Accounting Service (DFAS) to request the SBP annuity be paid to MG (Exhibit A).

On 9 Jun 17, DFAS denied the claim.  While DFAS acknowledged MG was the entitled beneficiary, the claim could not be paid because of the Barring Act (31 USC 3702).  The Barring Act precludes payment of any claim not received by the federal government within six years from the date it accrues.  In this case, the accrual date was the death of JG in 2005.

On 3 Jul 17, the applicant appealed the DFAS decision, stating MG was mentally incapable of understanding the program requirements.  Therefore, he was unable to take the appropriate steps to obtain the benefits to which he was entitled.

On 16 Aug 17, DFAS again denied the claim because of the Barring Act, but suggested MG might be able to obtain relief through the corrections board process.  DFAS noted the Board “has the authority, if it finds it warranted, to change a military record to show that [MG] made a timely claim.”  DFAS also noted the unpaid annuity from 1 Mar 05 to 31 Jul 17 was over $295,000.  

For more information, see the excerpt of JG’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

AFPC/DPFFF states there is no evidence of an Air Force error or injustice in this case.  However, should the Board elect to grant the relief, JG’s retired pay records should be corrected to reflect a valid claim for payment of the SBP on 13 Feb 05.   The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 22 Jan 19 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.   After reviewing all Exhibits, the Board concludes the eligible dependent is the victim of an injustice.  The Board finds a preponderance of the evidence substantiates the applicant’s contentions.  In particular, the eligible dependent’s delay in applying for the annuity under the SBP is the result of his disability.  Under such circumstances, and mindful that the service member paid premiums until his death, the Board recommends correcting the service member’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the DECEASED SERVICE MEMBER be corrected to show that on 13 February 2005, the SERVICE MEMBER’S ELIGIBLE BENEFICIARY filed a valid claim for payment of his Survivor Benefit Plan annuity.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-04310 in Executive Session on 28 Mar 19:

Panel Chair
Panel Member
Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 16 Sep 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFFF, dated 18 Jan 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 22 Jan 19.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.