PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 November 1999                   
	DOCKET NUMBER:   AR1999024964

	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. Erin J. Olmes		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. James E. Anderholm		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 that she and/or her children be determined to be eligible for a Survivor Benefit Plan (SBP) annuity based on the election of her deceased spouse, a former service member (FSM).

3.  The applicant states that the Defense Finance and Accounting Service (DFAS) has denied her an SBP annuity because of the 6-year statute of limitations.  After the FSM died in 1984, she told a Ms. ______ of the Social Security Administration that she would also be making a claim for annuity benefits due from his service in the National Guard and U. S. Army Reserve.  Ms. ______ told her it was all paid through the U. S. government.  She had no reason to know she was being given erroneous information.  She did not realize she was not receiving the SBP annuity with her Social Security check until social security was no longer available.

4.  The FSM’s military records show that he was born on 18 July 1939.  He and the applicant married on 18 October 1969.  He served in the Army National Guard and the U. S. Army Reserve and was notified he was eligible for retired pay at age 60 on 31 May 1978.

5.  On 5 October 1979, the FSM elected to participate in the Reserve Component SBP for spouse and children coverage, option C, immediate coverage.

6.  The FSM died on 15 July 1984.

7.  Apparently around August 1997, the applicant applied for an SBP annuity through the Department of Defense.  DFAS informed her that since the FSM died on 15 July 1984, the 6-year statute of limitations expired on 15 July 1990; therefore, she was not entitled to survivor benefits.

8.  Public Law 95-397, the SBP, 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 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).

9.  Title 32, U. S. Code, section 3702 is the 6-year barring statute for payment of claims by the government.  It prohibits the payment of a claim against the government unless received by the Comptroller General within 6 years after the claim accrues.

CONCLUSIONS:

1.  The Board concludes that an injustice occurred in this case.

2.  It is unfortunate that the applicant applied to the wrong Government agency (the Social Security Administration instead of the Department of Defense) for the SBP annuity in 1984.  This resulted in her believing that the annuity was included in her Social Security check.  This erroneous belief was not corrected until sometime around 1997, by which time the 6-year barring statute prevented her from claiming any entitlement to the SBP under the elected option C, immediate coverage.

3.  However, if the FSM had elected option B, coverage to begin at age 60, the applicant’s entitlement to the SBP would have begun on 18 July 1999.  This option would avoid any problems with Title 32, U. S. Code, section 3702’s 6-year statute of limitations and also would provide for a lower cost being deducted from the annuity.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’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 5 October 1979 the FSM made an RCSBP election of spouse and children, 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:  

__ejo___  __jlp___  __jea___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Erin J. Olmes
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999024964	
SUFFIX		
RECON		
DATE BOARDED	19991118	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.