PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 November 2000                   
	DOCKET NUMBER:   AR2000043328

	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:

	Mr. John N. Slone		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Thomas Lanyi		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 waiver of the barring statute to entitle her to the Reserve Component Survivor Benefit Plan (RCSBP) annuity of her deceased spouse, a former service member (FSM).

3.  The applicant states she was never briefed on her entitlement to the RCSBP by members of the Connecticut Army National Guard after the FSM died.  She did not find out until recently that she was entitled to the RCSBP when her current spouse (she remarried after age 55) retired from the Army Reserve, started to collect his retired pay, and asked her how much she received from the FSM’s retired pay.  Now she is being told that too much time has passed and she cannot receive the RCSBP.  On 28 November 2000, she amended her application to request that the FSM’s records be corrected to show that he elected RCSBP, option B if the relief she initially requested could not be granted.

4.  The FSM’s military records show that he was born on 18 July 1939.  He entered the Army National Guard on 13 August 1957.  He and the applicant married on 27 July 1963.  (She was born on 12 December 1942.)  On                18 November 1977, he received notification of his eligibility for retired pay at age 60 (his 20-year letter).  On 20 September 1979, the FSM enrolled in the RCSBP for spouse only coverage, full base amount, option C.  The FSM died on           25 November 1991.  The applicant remarried on 20 December 1997.  

5.  On 15 May 2000, the Defense Finance and Accounting Service – Denver informed the applicant that her claim for the RCSBP was barred by the statute of limitations.

6.  On 23 May 2000, the Connecticut Army National Guard verified that the survivor assistance officer assigned to the applicant did not assist her in completing the Application for Annuity under the SBP (DD Form 1884).

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).  An Open Season was established from  1 October 1978 – 30 September 1979; later extended to 31 March 1980.  Remarriage of the surviving spouse before age 60 suspended payment (changed to age 55 by Public Law 99-661, enacted 14 November 1986). 

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.  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 1991, the applicant was not given any information as to her SBP entitlement.  She did not discover she was eligible for the annuity until 2000, 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       18 July 1999, the date the FSM would have reached age 60.  This option would avoid 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, the applicant’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 20 September 1979 the FSM made an RCSBP election of “spouse only,” option B, full base amount, thereby allowing the applicant to become an eligible annuitant on the anniversary of the FSM’s 60th birthday provided she was otherwise eligible.

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

BOARD VOTE:  

__jns___  __cla___  __ti____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043328	
SUFFIX		
RECON		
DATE BOARDED	20001130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.