PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            17 May 2000                  
	DOCKET NUMBER:   AR1999024757

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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, the spouse of a deceased former service member (FSM), requests that the FSM’s records be corrected to reflect 20 years, 4 months and  9 days of qualifying service for retirement and that his records be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage.

3.  The applicant states that at the time of the FSM’s death, his records did not reflect the appropriate amount of qualifying service for retirement and no election for survivor benefits was afforded due to his records not being accurately documented.  His service was recalculated in 1999 and it was determined that he had over 20 years of qualifying service.  However, when she applied to the Defense Finance and Accounting Service (DFAS) for the SBP annuity they denied her the benefit citing the 6-year statute of limitations.

4.  The FSM’s military records show that he was born on 5 December 1929.  He initially entered the service in 1948.  He married the applicant on 9 August 1952.

5.  The FSM was on active duty for training from 11 June 1984 to 12 June 1984, when he died on 12 June 1984.  

6.  At the time of the FSM’s death, his records reflected he had only 18 years,     8 months and 12 days of qualifying service for retirement.  When the applicant applied for SBP benefits, the U. S. Army Reserve Components Personnel and Administration Center so informed her and denied her SBP entitlement.

7.  In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the U.S. Army Reserve Personnel Command, Transition and Separations Branch, which opined that the applicant’s request should be granted.  It stated that at the time of the FSM’s death his retirement point record was incomplete and did not show that he had 20 qualifying years for retirement, and therefore had not been issued a 20 year letter or notice of eligibility for Survivor Benefit Plan (SBP) enrollment.  His records have since been corrected to show he had 20 years, 4 months and 9 days of qualifying service at the time of his death.  The applicant concurred with the advisory opinion.

8.  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.  

9.  Public Law 95-397, enacted 30 September 1978, established the Reserve Component SBP (RCSBP) for Reserve Component members who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.  Members of the Army Reserve could elect one of three options regarding their RCSBP coverage.  Option A enabled members to decline to make an election at the time of transfer to the Retired Reserve with the understanding they would remain eligible to make an election for coverage at age 60, Option B allowed members to provide an annuity beginning on their 60th birthday should he die before that date or on the day after the date of death if he died after age 60, Option C provides an immediate annuity beginning on the day after the date of death whether before or after age 60.  Like members of the Active Army, elections made by members of the Reserve Components are irrevocable.

10.  Title 31, U. code, section 3702 prohibits the filing of a claim against the Government unless such claim is received within 6 years after the date such claim first accrued.

CONCLUSIONS:

1.  At the time of the FSM’s death his records reflected that he had only 18 years, 8 months and 12 days of qualifying service for retirement.  Because he was not qualified for a non-regular retirement he had never been eligible to enroll in the RCSBP.

2.  In 1999, the Army Reserve Personnel Command recalculated the FSM’s qualifying service and determined he had 20 years, 4 months and 9 days of qualifying service for retirement.  He should have received a 20-year letter and should have been eligible to enroll in the RCSBP prior to his death.

3.  The Board concludes that had the FSM received his 20-year letter at the proper time, he would have enrolled in the RCSBP for spouse only coverage, option C, full base amount.

4.  The Board further concludes that the barring statute does not apply in this case.  The applicant’s claim accrued beginning in 1999 when it was determined that the FSM did have 20 qualifying years for retirement at the time of his death.

5.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  showing that the FSM had 20 years, 4 months and 9 days of qualifying service for retirement at the time of his death; 

b.  showing that the FSM was issued his 20-year letter on 1 June 1984;

c.  showing that the FSM enrolled in the RCSPB for spouse only coverage, option C, full base amount on 1 June 1984; and 

d.  that the applicant be paid an RCSBP annuity from 13 June 1984 to the present. 

2.  The Defense Finance and Accounting Service will be instructed to collect any RCSBP costs due.

BOARD VOTE:  

__cmf___  ___fe___  ___rjw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999024757	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000517	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 137.00		
2.		
3.		
4.		
5.		
6.