IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011x

		DOCKET NUMBER:  AR20110011107 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of the appropriate records to show she requested entitlement to Survivor Benefit Plan (SBP) benefits based on the death of her husband, a former service member (FSM), in a timely manner.

2.  The applicant states she was not notified of her entitlement to SBP benefits until 28 January 2011 when she received a letter stating she did not file within the required timeframe. 

3.  The applicant provides a certificate of death and two letters.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior active service, the FSM's records show he enlisted in the Regular Army on 17 May 1977.  He served through multiple reenlistments in staff and leadership positions and attained the rank/grade of staff sergeant/E-6.

3.  He and the applicant were married on 24 November 1983.

4.  He was honorably retired from active duty on 31 August 1992 and placed on the Retired List on 1 September 1992.  He completed 20 years and 26 days of creditable active service.

5.  A DA Form 4240 (Data for Payment of Retired Army Personnel), dated 31 August 1992, shows he elected SBP for spouse coverage in the full amount.

6.  The applicant provides a death certificate, dated 26 February 1998, wherein it shows the FSM died on 9 February 1998.  This certificate also shows he was married to the applicant at the time of his death.

7.  She also provides a letter, dated 19 January 2011, to her from the Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay Branch, wherein it was stated they were sorry to hear of the death of her husband and that a form was being enclosed for her to complete.  She also provides an undated letter from DFAS wherein it was stated that upon retirement the FSM did elect spouse coverage under the SBP program; however, payment could not be made regardless of entitlement because the 6-year statute of limitations had expired.

DISCUSSION AND CONCLUSIONS:

The evidence of record shows the applicant was entitled to the SBP annuity based on the death of the FSM on 9 February 1998.  Therefore, the record should be corrected to show she applied for the SBP annuity in February 1998.  

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she applied for the SBP annuity in February 1998 and that she be paid the SBP annuity, provided she otherwise meets the eligibility criteria, retroactive to 10 February 1998.



      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110011107



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ABCMR Record of Proceedings (cont)                                         AR20110011107



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