IN THE CASE OF: BOARD DATE: 31 August 2020 DOCKET NUMBER: AR20200001062 APPLICANT REQUESTS: as the former service member (FSM)’s spouse, retroactive entitlement to benefits under the Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Order# 134-13, dated 28 July 1978 * Certificate of Death, dated 23 September 1988 * Request for Information and or Reply to Correspondence, dated 27 August 1993 * Defense Finance and Accounting Service (DFAS) Directorate for Retired/Annuity Pay, dated 2 September 1993 * DFAS letter, dated 27 March 1995 * DFAS letter, dated 7 October 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant requests correction of the FSM’s records to reflect a timely submission for entitlement to the SBP annuity. She was advised by DFAS to seek restitution through the ABCMR. She believes that the decision to deny her application for the SBP annuity was unjust because she and her daughter filed for receipt of this entitlement at the same time. At the time of application, their daughter, was a minor. She received her annuity from the time of the FSM’s death until reaching age 22. The money that she received assisted with paying for her school. She was never advised that she too was entitled to receive an annuity. She adds that the Board should consider her request because it would be an injustice if she was not able to receive the annuity. The FSM contributed to the SBP in order to provide for both her and her daughter in the event of his death. Withholding such amount from them would be a grave injustice towards the FSM who served for over 20 years prior to his retirement. 3. A review of the FSM’s available military records reflects the following: a. On 29 August 1958 he was inducted into the United States Regular Army. b. On 28 July 1978 (Order# 134-13) he was ordered to be released from active duty and placed on the retired list effective 31 October 1978. c. On 31 October 1978 he was honorably released from active duty for retirement after serving 20 years 1 month and 11 days on active duty. d. His completed DA Form 2656 (Data for Payment of Retired Army Personnel) indicates an election to participate in the SBP: * item 7a. (Marital Status) indicates “married” * Part II (Beneficiaries for unpaid Retired Pay) reflects the FSM’s mother’s name * Part III (Gratuity Pay) he elected option C. (Dependent Children only) * item 17 (Name of Spouse) contains the applicant’s name * Part IX (Survivor Benefit Plan Certificates) is void of the applicant’s signature – e. On 6 December 1988 (DD Form 1300 - Report of Casualty) was completed indicating that the FSM passed on 23 September 1988. 4. The applicant provides the following: a. Order# 134-13 – see 3b. above. b. Certificate of Death dated 23 September 1988 reflective of the passing of the FSM; the applicant is listed as the surviving spouse. c. Request for Information and/or Reply to Correspondence dated 27 August 1993 reflective of the FSM’s daughter request for information; document appears to be incomplete. d. Defense Finance and Accounting Service (DFAS) Directorate for Retired/Annuity Pay dated 2 September 1993 reflective of a request from DFAS to the FSM’s daughter regarding proof of school enrollment for the spring semester of 1993. The document was certified on 17 September 1993 verifying her enrollment in school for the fall semester. e. DFAS letter dated 27 March 1995 reflective of the FSM’s daughter being advised of her entitlements under the SBP and the expiration date of such annuity; age 22 if enrolled in college. f. DFAS letter dated 7 October 2019 reflective of DFAS denying the applicant’s entitlement to an SBP annuity citing the Barring Act. DFAS contends that she did not apply within 6 years of being entitled to the annuity. The total claimed amount for the retroactive annuity would be $282,033.80 as 30 September 2019. Paragraph B. provides that she has the right to request a waiver from the Secretary of the Army. Waivers are limited to claims up to $25,000.00. Lastly she was also advised to seek assistance from the ABCMR under the provisions of Title 10, United States Code 1552. 5. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. However, pon retirement in 1978, the FSM elected child only SBP coverage. The applicant’s signature indicating she had been counseled with regard to the FSM’s election is missing from the reverse of the election form; however, written spousal concurrence was not required to decline spouse SBP coverage prior to 1 March 1986. The FSM’s dependent children received the SBP annuity following his death in 1988 until they aged out of coverage. 2. Beyond the applicant’s current statement to the ABCMR – 40 years after the FSM’s initial SBP election and 30 years after the his death, there is nothing in the record reflecting the FSM attempted or even intended to elect spouse SBP coverage. Rather, he affirmatively elected child only SBP coverage. The only way to grant relief would be by correcting the FSM’s original 1978 SBP election to reflect he elected spouse and child SBP coverage. This would trigger past due premiums for the additional spouse coverage for the period from retirement until the FSM’s death. Further, because the SBP annuity can only be received by one category of beneficiary and the spouse would be the primary beneficiary (the annuity would only pass to the children if the spouse died, remarried before age 55, or otherwise became ineligible), granting relief may also trigger recoupment of the SBP annuity paid out to the dependent children (though this would need to be confirmed with DFAS). Based on the evidence of record, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances 3. Army Regulation (AR) 600-8-7 (Retirement Services Program) states that all Active Army Soldiers will receive the DA pre-retirement briefing, including a SBP briefing, at least 12 months before their retirement dates or for medical retirements at the start of the medical retirement process. In cases where a Soldier requests to retire in less than 12 months, the Soldier will attend the next group preretirement brief or receive an individual pre-retirement brief from a Retirement Services Officer. Married Soldiers may not decline, without the written, notarized concurrence of their spouses, to participate in SBP, to provide an annuity for the Soldier’s spouse at less than the maximum level, or to provide an annuity for a dependent child but not for their spouses. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. 4. Department of Defense Financial Management Regulation (DODFMR) dated September 2005, section 430303E states, effective March 1, 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouse’s concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. The spouse’s concurrence with, or request for, an election other than that requested by the member shall be disregarded. If all requirements for an election needing the spouse’s concurrence have not been satisfied prior to retirement, for whatever reason, full spouse costs and coverage will be implemented, regardless of any request by the member to do otherwise. 5. The Barring Act, 31 U.S.C. § 3702 states that the Secretary of Defense shall settle claims involving uniformed service members’ pay, allowances, travel, transportation, payments for unused accrued leave, retired pay, and survivor benefits. A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues. A claim that is not received in the time required under this subsection shall be returned with a copy of this subsection, and no further communication is required. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001062 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1