IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220004891 APPLICANT REQUESTS: back payment of the former servicemember's (FSM) Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Defense Office of Hearing and Appeals (DOHA) letter, 19 October 2021 * SF 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services) * DD Form 2656-7 (Verification for Survivor Annuity) * Death Certificate FACTS: 1. The applicant states, in effect: a. During the period prior to the FSM's death, she was his primary essential caregiver for over 13 years. During this time, she was solely responsible for all of his needs to ensure his well-being from washing his hands to preparing and feeding him his favorite meal, getting him to doctors' appointments, administering medicines, bathing him, cleaning him after bowel and urine incidents, helping him walk, watching him constantly to ensure he did not fall and hurt himself or eat or drink anything harmful, keeping this watchful eye over him 24 hours a day, 7 days a week, for 365 days. She had to ensure he did not wander away from home and groomed him in the manner in which he was accustomed to. She provided him a loving quality of life and interactions. b. As can be imagined, although critical to compliance, the application deadline for receipt of SBP was unfortunately missed in the wake of caring for the FSM who was her 9th grade boyfriend and lifelong partner. c. The task of meeting the requirement, although an important step with compliance, unfortunately fell to the wayside while meeting the expectations of caring for the FSM. Further exacerbating this scenario and unbeknownst to the applicant, during these critical years of the FSM's life and providing loving care and ensuring his well-being, she was about to enter another level of care needed in relationship to her own health. d. The day came, after several years of not addressing her own personal health issues, she began the journey of discovery into a critical physical health challenge of her own. She was medically diagnosed with Stage 4 Breast Cancer. She realized that some of her sick days, during those years of caring for the FSM, that she ignored her own symptoms of poor health directly attributed to her condition but for that she still makes no excuses and took care of the FSM. She would not trade any of those for all the treasures of the world. However, her own health needs, during these years, placed her at a point in life that she was too sick to even take care of herself. e. At that point, she did not know what to do except fight for her life. During this dark and transitional period in her life there were so many things she could not do because she was so sick and so many things she did not know she needed to do. f. Continuing the journey with breast cancer survival treatment and in the throes of the COVID 19 pandemic, losing two sisters as a result of COVID, she struggled to maintain a sense of homeostasis. It took her so long to apply for SBP benefits because she was just too sick in the earlier years. It was not until this year that she found out about the benefits and she immediately took action to learn the parameters and she submitted her claim immediately. The resource allows her husband, the FSM, to continue to be in a supportive family position. 2. The FSM's records contain the following documents for the Board's consideration: a. A Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60, which states the FSM would be eligible for retired pay upon application at the age of 60. b. National Guard Bureau Form 23A (Army National Guard (ARNG) Retirement Points History Statement Application for Retirement Pay), dated 6 July 1993, which shows the FSM had 20 years, 8 months, and 15 days of service towards retired pay. c. DD Form 1883 (SBP Election Certificate) dated 10 August 1993, wherein the FSM requested full SBP for his wife only with immediate coverage. The FSM and his spouse were married on 3 November 1963. d. DD Form 108 (Application for Retired Pay) dated 20 March 2006, wherein the FSM was requesting retired pay to begin on 30 April 2001. e. DD Form 2656 (Data for Payment of Retired Personnel) dated 20 March 2006, which shows the FSM was requesting retired pay. The form shows: * the applicant was his SBP beneficiary * he did not have any dependent children * he elected SBP for spouse only * he elected SBP coverage based on full gross pay * he and a witness endorsed the form on 20 March 2006 f. Memorandum, Subject: Application for Retired Pay Benefits, dated 23 March 2006, regarding the FSM's application for retired pay, which had been verified as true and correct. g. A letter to the FSM, dated 16 May 2006 from the U.S. Army Human Resources Command (HRC) approving his application for retired pay. h. Orders Number P05-685324 issued by HRC, dated 16 May 2006, placed the FSM on the retired list, effective 30 April 2001. 3. The applicant provides the following documents for the Board's consideration: a. DOHA letter dated 19 October 2021, which states in effect: (1) The decision was in response to the 13 October 2021 request from the Assistant Secretary of the Army (Financial Management and Comptroller) that the Secretary of Defense waive the statute of limitations under Title 31, United States Code (USC) subsection 3702(e)(1) to allow payment of unpaid SBP benefits to the applicant the widow of the FSM in the amount of $16,459.33. (2) The FSM elected SBP coverage for his spouse when he retired on 30 April 2001. The FSM passed away on 4 December 2013. On 10 March 2014, the Defense Finance and Accounting Service (DFAS) mailed the applicant a condolence letter advising that they had not received the FSM's death certificate, and that in order for her receive the SBP annuity, she needed to provide them with proof of the FSM's death. DFAS reports they have no record of the applicant applying for SBP annuity until March 2021. DFAS processed the SBP annuity claim and denied it citing the 6 year statue of limitations imposed by the Barring Act. DFAS determined the amount payable to the applicant for the period of 5 December 2013 through 30 September 2021 was $16,459.33. The applicant requests waiver of the statute of limitations to allow payment of the barred amount. The Assistant Secretary of the Army had recommended approval. DFAS has indicated that the funds are available for payment. b. SF 1174 dated 26 March 2021, signed by the applicant and a witness, wherein the applicant is requesting unpaid compensation for the FSM. She indicated she was the designated beneficiary and the FSM died on 4 December 2013. c. DD Form 2656-7 dated 26 March 2021, which shows the FSM's date of birth, date of death, the applicant's date of birth, and she was requesting SBP and was the spouse of the FSM, she and the FSM were married on 3 November 1963 and were legally married on the date of the FSM's death. d. The FSM's death certificate showing the applicant as the informant and the date of death as 4 December 2013. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's request, the former service members record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. Upon review of the applicants petition and available military records for the FSM, the Board determined the FSM intended for his spouse to receive the benefits. The Board determined the surviving spouse provided a credible explanation of why she did not apply for the SBP payments within the allotted six years of the FSM death in 2013. The Board determined that an injustice had occurred and that correction of the FSM record to receive payment beyond the amount is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 FSM’s surviving spouse has an approved waiver of the statue of limitations to allow payment of the barred amount. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 31, United States Code, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. 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. 3. Public Law 95-397, the Reserve Component RCSBP (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 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 de- pendent 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004891 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1