PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 June 2000                   
	DOCKET NUMBER:   AR2000035323

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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 the records of her deceased spouse, a former service member, be corrected to show he elected option B when he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

3.  The applicant states that the FSM had elected option C of the RCSBP but she was never informed on how to apply for the annuity until 1997, after the 6-year statute of limitations had expired.

4.  The FSM’s military records show that he was born on.  After having had prior enlisted service, he was appointed a warrant officer in the Army National Guard on 29 March 1966.  He transferred to the U. S. Army Reserve in 1968 and was discharged in 1973.  He reentered the Army National Guard on 2 June 1976.  

5.  The FSM’s notification of eligibility for retired pay (his 20-year letter) is dated  2 August 1982.  On 3 October 1982, he enrolled in the RCSBP for spouse and children coverage, full base amount, option C (immediate coverage).  

6.  The FSM died on 1 December 1988 of a heart attack while still a member of the Army National Guard.  

7.  On 30 December 1997, the Defense Finance and Accounting Service (DFAS) informed the applicant that no annuity entitlement was payable as she failed to submit her claim within 6 years of the FSM’s death.  DFAS did note that had the FSM’s election been for option B rather than for option C, then her annuity entitlement would not have accrued until 25 December 1999.

8.  Sometime in 1997, the Army Inspector General (IG) investigated the circumstances surrounding the death of the FSM and the applicant’s claim for his SBP annuity.  The IG determined that while a Survivor Assistance Officer should have been detailed to assist the applicant in securing all her entitled benefits, none was.  It appeared to the IG that everyone thought someone else was taking care of advising and assisting her; however, they could find no evidence that anyone was.  

9.  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). 
10.  Title 31, U. S. Code, section 3702 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 properly enrolled in the RCSBP for spouse and children coverage, full base amount, option C, immediate coverage if he should die before age 60.

2.  When the FSM died in 1988, his unit failed to appoint a Survivor Assistance Officer to assist his spouse, the applicant, in applying for all her benefit entitlements, to include the SBP annuity.  She did not discover the mistake until 1997, after the 6-year statute of limitations for making a claim against the government expired.

3.  If the FSM had elected option B of the RCSBP, coverage effective upon reaching age 60, the applicant would have become an eligible annuitant on      
25 December 1999, the date the FSM would have reached age 60.  This option would have avoided any problems with Title 31, 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 applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that on 3 October 1982 the FSM made an RCSBP election of spouse and children coverage, option B, full base amount, and returned the election form 

to the Army Reserve Personnel Center for processing, thereby allowing the applicant to become an eligible annuitant on the anniversary of the FSM’s 60th birthday.

BOARD VOTE:  

__mdm__  __wtm___  __clg___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000035323	
SUFFIX		
RECON		
DATE BOARDED	20000627	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.