PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 December 1999                   
	DOCKET NUMBER:   AR1999026434

	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:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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.  

3.  The applicant states that when her husband, a former service member (FSM), died in 1988, his unit told her that no benefits were due her at that time but his election entitled her to benefits upon his 60th birthday.  She was told to apply for those benefits 6 months prior to what would have been his 60th birthday.  Now she is being told that since she applied more than 6 years after his death she is not entitled to any SBP benefits.

4.  The FSM’s military records show he was born on 27 December 1939.  He enlisted in the Army National Guard on 23 February 1957 and, after a break in service, in the U. S. Army Reserve on 8 February 1977.  

5.  On 22 October 1988, the FSM elected Reserve Component SBP (RCSBP) coverage for spouse only, full base amount, option C, immediate coverage if he died before age 60.

6.  The FSM killed himself on 31 December 1988.

7.  On 13 March 1999, the applicant applied for an SBP annuity.  On 26 March 1999, the Army Reserve Personnel Command (AR-PERSCOM) informed her that, due to the barring statute, she was not entitled to survivor benefits.  On      28 April 1999, another office at AR-PERSCOM provided her the same information.

8.  Public Law 95-397, the 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 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(b) prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Comptroller General rulings have also held that an action by a corrections board to alter the date an applicant applied for an annuity is not sufficient to authorize payment beyond the period of limitations. 

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 1988, the applicant was given erroneous information as to her SBP entitlement.  She did not discover the mistake until 1999, after the 6-year statute of limitations for making a claim against the government expired.

3.  However, if the FSM had elected option B of the RCSBP, coverage effective upon reaching age 60, the applicant would become an eligible annuitant on       27 December 1999, the date the FSM would have reached age 60.  This option would avoid any problems with Title 32, U. S. Code, section 3702(b), the Barring Act, 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 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 22 October 1988 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:  

__fkm___  __rvo___  __sk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred K. McCoy
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026434	
SUFFIX		
RECON		
DATE BOARDED	19991216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.