PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR2000037498

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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 (FSM), be corrected to show that he elected to enroll in the Reserve Component Survivor Benefit Plan (RCSBP) and that she be determined to have applied for that annuity in a timely fashion.

3.  The applicant states that “they” (apparently the FSM’s Tennessee Army National Guard (TN ARNG) unit) kept telling her she could not draw his retirement until he would have turned 60 years old.  Finally, a friend of her grandson’s, who is in the Navy, helped her send the paperwork to St. Louis, MO where they approved her benefits and sent the paperwork to the Defense Finance and Accounting Service (DFAS).  DFAS approved it and sent her a check for back benefits, then told her she could not draw the benefits because she was beyond the 6-year limit to file and told her to send the check back.

4.  The FSM’s military records show that he was born on 29 September 1939.  After having had prior service in the TN ARNG and the Regular Army, he enlisted in the U. S. Army Reserve on 16 May 1981.  At that time he had completed 20 qualifying years for a non-regular retirement; however, he did not meet the requirement to complete the last eight qualifying years in a reserve component until around 1989.  Around 1989 he apparently asked the Army Reserve Personnel Center (ARPERCEN) where his 20-year letter was.  ARPERCEN apparently responded negatively, so he went to the TN ARNG for assistance.  Apparently based on the TN ARNG’s assistance, ARPERCEN issued his 20-year letter on 15 August 1990.  The FSM may not have received this letter because the Army Reserve Personnel Command (AR-PERSCOM, formerly ARPERCEN) has stated that the TN ARNG told them he was never notified of his SBP eligibility.  A DD Form 1883, Survivor Benefit Plan Election Certificate was not completed by the FSM.

5.  On 14 March 1993, the FSM died.  It appears the VA notified the Army on    23 January 1995.  

6.  On 17 August 1999, AR-PERSCOM informed the applicant that DFAS would be notified and authorized to pay an annuity to her.  Apparently AR-PERSCOM certified her claim to the SBP annuity based on the TN ARNG’s statement that the FSM was not afforded the opportunity to enroll in the SBP.  On 28 October 1999, DFAS informed her that they had received all the documentation they needed to establish her RCSBP annuity and she would be receiving her first payment in the amount of $9,390.00 (due from 15 March 1993 to 31 October 1999).  On 23 November 1999, DFAS informed the applicant she was overpaid the SBP annuity in the amount of $9,396.00 and charged her a debt for that amount.  It cannot be determined from this letter why she was overpaid but it was possibly due to the 6-year barring statute.

7.  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). 

8.  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.  Although it cannot be determined which Government agency was at fault, the evidence of record indicates that the FSM was not counseled regarding his eligibility to enroll in the RCSBP at the time he should have received his 20-year letter.  The Board concludes that had the FSM been properly counseled, he would have elected to enroll in the RCSBP.  

2.  It appears that AR-PERSCOM may not have had the authority to “certify” the applicant’s claim to an SBP annuity.  However, the Board has the authority to correct the FSM’s records to show that he elected to enroll in the RCSBP.  Once that correction is made, the applicant would have 6 years from the date of correction to file her claim.

3.  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 showing that on 1 September 1990 the FSM made an RCSBP election of “spouse only,” option C, full base amount, and returned the election form (DD Form 1883) to ARPERCEN for processing, thereby allowing the applicant to become an eligible annuitant effective 15 March 1993, the day after the date of the FSM’s death.

2.  That any debt owed by the applicant due a previous overpayment of SBP be applied towards the annuity due her as a result of the correction described above.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__slp___  __lem___  __aao___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037498	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.