IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150004073 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, the widow of the deceased former service member (FSM), requests, in effect, that she be provided a Survivor Benefit Plan (SBP) annuity. 2. The applicant states her husband went missing in 1993 and after an extensive search for his remains, the Circuit Court for Brevard County Florida declared him deceased. 3. The applicant provides: * Order to Establish Death * DD Form 1300 (Report of Casualty) * Certificate of Death CONSIDERATION OF EVIDENCE: 1. Having over 4 years prior Regular Army (RA) and U.S. Army Reserve service, the FSM enlisted in the RA on 10 August 1976. 2. Evidence shows the FSM married the applicant on 30 November 1977. 3. The FSM was promoted the rank/grade of sergeant first class (SFC)/E-7 on 1 August 1989. 4. The applicant provides and the FSM's record contain: a. Certificate of Death, Florida, dated 29 June 2007, which lists the FSM's date of death as 17 November 1993. b. DD Form 1300, issued by the Chief, Casualty Support Section, U.S. Army Human Resources Command (HRC), dated 12 December 2013, which states the FSM went missing from his unit on 17 November 1993, in the rank/grade of SFC/E-7. He was placed in absent without leave status, and subsequently dropped from the rolls. His remains were never found. The applicant successfully lobbied the State of Florida to have him declared deceased on 29 June 2007. The FSM was annotated as being returned to custody by U.S. Army Deserter Information Point, Fort Knox, KY. c. A memorandum, issued by the Process Unit Section Chief, Human Resources Service Center, HRC, to the Director of Finance and Accounting Cleveland Center, dated 3 April 2014, which furnishes information for use in determining the eligibility for the SBP pertaining to the FSM who died on active duty. The memorandum notes the FSM completed 21 years, 4 months, and 1 day active military service; 1 year, 1 month, and 19 days inactive military service; and 22 years, 5 months, and 20 days total creditable service. His retirement grade is noted as SFC/E-7. 5. A staff member of the Board contacted the Defense Finance and Accounting Service (DFAS) Annuity office on 21 October 2015 to request information pertaining to SBP paid to the applicant. The DFAS representative noted that although they were aware of the FSM's status, no SBP annuity payment had been made to the applicant nor were they able to locate a request for payment from the applicant. 6. 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. Elections are made by category, not by name and cannot be changed except as provided for by law. 7. Information obtained from the DFAS Homepage, under the Retired Military and Annuity tab, provides instructions for reporting the death of the retiree. It states, late notification of a retiree's death may result in burdensome consequences, including delays in finalizing a member's account, payment of arrears of pay and the establishment of an SBP annuity. The beneficiary of the FSM's SBP must report the FSM's death to the DFAS office immediately. Once the death has been reported the beneficiary will receive a DD Form 2656-7 (Verification for Survivor Annuity) at the address that is on record. This form must be completed and upon return to the DFAS office, the SBP annuity will begin. 8. Title 31 U. S. Code (USC), 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the FSM was declared deceased by the State of Florida on 29 June 2007. Based on this declaration, the Army lists his date of death as 17 November 1993. It appears his death was reported to the DFAS; however, to date, no annuity has been paid to the applicant. 2. The applicant became aware of her right and the procedures to apply for the annuity at some point; however, the Barring Act would prevent payment beyond 6 years without consideration from the Board. It is reasonable to presume if she had been aware of the Army's techniques and procedures she would have filed her claim immediately after the FSM was declared deceased. 3. In view of the foregoing it would now be proper to correct the FSM's record to show: * The applicant reported the FSM's death in a timely manner * She applied for the SBP annuity by submitting a DD Form 2656-7 in a timely manner * She began receiving SBP annuity payment retroactive to the day after the FSM's death 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 the applicant applied for SBP in a timely manner, and awarding her all SBP annuities due. ___________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) AR20150004073 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004073 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1