MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            14 April 1999     
	DOCKET NUMBER:   AC98-07197
				   AR1999016267

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, correction of the military records of her late husband, a former service member (FSM), to show that he elected survivor benefit plan (SBP) participation for his spouse.  She requests SBP benefits.   

APPLICANT STATES:  That her husband died on 12 September 1979, and she recently became aware of a law whereby she could have received survivor benefits, because she was not told that her husband did not participate [in the SPB].  She states that the law says that widows of military retirees, who had not been notified of their husbands’ election not to participate in the SBP annuity are entitled to SBP benefits, however, the spousal notification requirement applies only to retirements that were effective from 21 September 1972 through              28 February 1986.  She states that the statue of limitations was 6 years from the date of her husband’s death, and that she was never notified of this law.

EVIDENCE OF RECORD:  The military records of the FSM show:

The FSM retired from the Army on 30 November 1972 in the rank of Sergeant Major.  He had 26 years, 8 months, and 5 days of service.  He passed away on   12 September 1979.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Army Retirement Services.  The chief of that agency stated that there was no evidence that the applicant was not notified, as the law directed, and since the FSM died almost 20 years ago, his finance file was unavailable; and the statue of limitations to apply for a correction had expired.  He recommended that the applicant’s request be denied.  The applicant was furnished a copy of this opinion on 12 January 1999.  She failed to respond.

Prior to 1 March 1986, the SBP law required that a member’s spouse be “notified” if the member did not elect maximum SBP coverage for the spouse.  In Barber v. United States the Court of Claims held that if a spouse was not notified of the member’s failure to elect maximum spousal coverage, the spouse was entitled to an SBP annuity upon the member’s death.  The claim at issue, filed more than 6 years following the member’s death, was considered by the appropriate board for correction of military records, which corrected the deceased member’s records to show that the member had elected full SBP coverage for his spouse. 
  
In Hart v. United States, the Court of Appeals for the Federal Circuit overruled a United States Claims Court case allowing a claim, where, on the basis of the “continuing claim” doctrine, the widow filed her claim more than 6 years after the member’s death.  The Court of Appeals found that annuity claims generally accrue at the time of the member’s death, that such claims are not “continuing claims,” and that they therefore do not delay the running of the applicable 6-year statute of limitations in 28 U.S.C. 2501.
The Court stated further that courts are not free to engraft exceptions on the statue of limitations so as to allow claims to be asserted beyond the 6-year time limit set forth in section 2501.  The court emphasized that claims of this type first accrue and the 6-year statute begins to run “when all the events have occurred which fix the liability of the government and entitle the claimant to institute an action”.  In such cases, the court held, all such events have occurred as of the day after the death of the member.

Section 2501 and its counterpart, 31 U.S.C. 3702(b), governing consideration of claims, are intended to put a limit on the time period for which the government must remain prepared to defend actions brought against it.  The government’s obligation to defend against claims arising under Barber is turned into an impossibility for government agencies such as DFAS which normally destroy records in individual cases after 6 years if no claim has been filed, and unable to document that they notified the spouse of the declination of maximum spousal coverage.  Thus, even if proper notice had been sent to a spouse at the time of the SBP election, agencies such as DFAS would be unable to prove they had done so.  This is the precise problem which both the 28 U.S.C 2501 and the Barring Act were enacted to avoid.   

The Comptroller General has therefore ruled that an action by a corrections board to show entitlement to SBP in a case of this nature would not give rise to a new claim and that such action is not sufficient to authorize payment beyond the period of limitations.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.   The statute of limitations for a claim had expired six years after the death of the retired service member, and notwithstanding any claim of the applicant, it does not provide the applicant with a right she did not have before.  The only effect of the correction would be to resurrect a barred claim, and the Comptroller General has held that an action [by this Board] to grant entitlements of this nature, is not sufficient to authorize payment beyond the statute of limitations.

2.  Nevertheless, there is no evidence to show that the FSM did not notify the applicant (his wife) of his option under the SBP, nor is there any evidence to show that the applicant was not notified of his election [not to participate] upon his death in 1979.  There is simply no information nor available evidence to support the applicant’s request. 

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___klw__  __aao___  __tbr___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-07197/AR1999016267	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990414	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY 	
REVIEW AUTHORITY		
ISSUES         1. 137.01		
2.		
3.		
4.		
5.		
6.