IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150000855 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 that she be paid the Reserve Component Survivor Benefit Plan (RCSBP) annuity for spouse that her husband, a former service member (FSM), elected and paid for. 2. The applicant states, in effect, that shortly after her husband passed away on 9 May 1995, she received a letter from the Defense Finance and Accounting Service (DFAS) in Denver, Colorado, advising her that a packet of documents would be sent to her in order for her to claim her RCSBP annuity. She goes on to state that she completed the packet and returned it to the DFAS during the same month and to date she has yet to receive her annuity. She continues by stating that she has continued to attempt to obtain to her annuity to no avail. She further states that DFAS now claims that the packet was never received and has imposed the Barring Statute which prevents her from claiming what was paid for and is due her. Additionally, she is 83 years of age and feels she has been treated poorly. 3. The applicant provides a list of 13 attachments along with an explanation of her application. CONSIDERATION OF EVIDENCE: 1. The FSM was serving as a U.S. Army Reserve (USAR) lieutenant colonel (LTC) when he received his 20-Year letter on 24 October 1969. He was transferred to the Retired Reserve on 20 May 1976 with 21+ years of creditable service for retired pay purposes. 2. On 20 June 1985, the FSM made an election for RCSBP full coverage for spouse. 3. On 7 September 1985, he was placed on the AUS Retired List in the rank of LTC at age 60. 4. The FSM died on 9 May 1995 at the age of 69 and on 14 July 1995, the Chief, Survivor Benefit Division, Director or Annuity Pay, DFAS, Denver, dispatched a letter to the applicant informing her that the FSM had elected full spouse coverage under the RCSBP and indicating that a packet of information would be dispatched to the applicant and she was to complete her application for an annuity and return it. The applicant states that she responded to DFAS and submitted the required document package within 90 days. When she did not receive the SBP annuity payments, she telephoned DFAS who stated that her husband’s service records were lost, and referred her to Veteran Affairs offices for assistance. 5. The applicant provides a copy of documents she faxed to DFAS to request the status of her RCSBP annuity payments. She states she did not receive an answer and no answer is available in the records. She continued to work through Veteran Service offices for the next 13 years with no solution. 6. On 26 November 2014, DFAS in Indianapolis, Indiana informed the applicant’s congressional representative that the applicant is the beneficiary of the FSM's Reserve Component Survivor Benefit Plan (RCSBP) coverage and was eligible for an annuity when the FSM died on 9 May 1995; however, no claim for the annuity was received from the applicant within 6 years, and under the Barring Act, DFAS is unable to establish an annuity account for the applicant. 7. Title 31, U. S. Code, section 3702 prohibits the payment of a claim against the Government unless the claim has been received within 6 years after the claim accrues. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that she should be paid an RCSBP annuity based on the death of the FSM on 9 May 1995 has been noted and has merit. 2. While the applicant has provided no evidence to show that her claim for an SBP annuity was received by DFAS, her recounting of the attempts to submit the proper claim and receive SBP annuity and the evidence she submits appear to be credible. Additionally, DFAS has acknowledged that she is entitled to the annuity and it is incomprehensible that she would not have applied knowing that she was entitled to receive the annuity. 3. One of the reasons behind the Barring Act is to relieve the Government of excessive paperwork and to prevent stale, baseless claims that the government cannot substantiate. Given the FSM’s and the applicant’s many years of service, she is certainly deserving of favorable consideration. Further, documents verifying the applicant's entitlements are readily available. Accordingly, application of the Barring Statute is not appropriate in this case. 4. Therefore, since it has been determined that the applicant is entitled to an SBP annuity, as a matter of equity, the FSM’s records should be corrected to show the applicant properly submitted a claim within the required time frame for the annuity payments to which she was entitled. 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 that the applicant submitted a claim on 1 November 1995 for the SBP to which she was entitled and paying the applicant SBP annuity payments beginning on the day following the FSM’s death on 9 May 1995. _______ _ 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) AR20150000855 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000855 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1