PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            30 September 1998                                     
	DOCKET NUMBER:   AC98-09883

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos .		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. James M. Alward		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests entitlement to a Survivor Benefit Plan (SBP) annuity.  She states that in June 1987, a week after her husband, a former service member (FSM), died she went to his former unit to inquire about such entitlement.  The unit clerk informed her that benefits would not start until the FSM’s 60th birthday and that she would be eligible for benefits at that time.  Several years later she learned about the SBP and also that her husband had enrolled.  The delay in receiving the proper information is the reason for the applicant’s delay in applying for SBP benefits.

3.  The FSM’s military records show he was born on 28 October 1939.  He enlisted in the Army National Guard on 7 April 1956.  On 17 May 1977, he received notification that he had met the eligibility for retired pay at age 60.

4.  On 9 September 1979, the FSM elected SBP coverage for spouse only, full base amount, option C, immediate coverage if he died before age 60.

5.  The FSM died around June 1987.

6.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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 SBP 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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

7.  In the processing of this case, a staff advisory opinion was requested from the Headquarters Army Retirement Services Office. The Retirement Services Office noted that there was an obvious administrative error committed by government personnel who gave the applicant erroneous information which led to her delay in applying for the SBP annuity.  However, proof of administrative error cannot be used to overcome the 6-year statute of limitations imposed by law.  

8.  The opinion states that if this Board could alter the date the applicant applied for the annuity, they recommend it be done.  However, Comptroller General rulings have held that such action by a corrections board is not sufficient to authorize payment beyond the period of limitations.  The opinion also stated that if such alteration could not be done, it may be wiser to introduce private legislative relief for the applicant.
CONCLUSIONS:  

1.  The FSM elected participation in the RCSBP for spouse only, full base amount, option C, immediate coverage if he should die before age 60.

2.  When the FSM died in 1987, the applicant was given erroneous information as to her SBP entitlement.  She did not discover the mistake until 1995, after the 6-year statute of limitations for making a claim against the government expired.

3.  Notwithstanding the advice given in the advisory opinion, another option is available.  If the FSM had elected option B of the RCSBP, coverage effective upon reaching age 60, the applicant would become an eligible annuitant on      28 October 1999, the date the FSM would have reached age 60.  This option would avoid any problems with U. S. Code 3702(b), the Barring Act, 6-year statute of limitations and also would provide for a lower cost being deducted from the annuity.

4.  Were it not for the statute of limitations, this Board feels the applicant would have been entitled to full relief.

5.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s records as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by showing that on 9 September 1979 the FSM made an RCSBP election of “spouse only,” option B, full base amount, and returned the election form (DD Form 1883) to ARPERCEN for processing, thereby allowing the applicant to become an eligible annuitant on the anniversary of the FSM’s 60th birthday.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

			                                                                    
                           			CHAIRPERSON