PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000045833

	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. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Ms. Brenda F. Hirschi		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 Reserve Component Survivor Benefit Plan (RCSBP) election of her deceased spouse, a former service member (FSM), be corrected to show he elected option B.

3.  The applicant states that she was not aware of the requirement to submit an RCSBP annuity claim within 6 years after the death of the FSM.  The applicant concurred in an advisory opinion which recommended that her annuity claim be approved with payment starting with the date of the FSM’s death (RCSBP option C).

4.  The FSM’s military records show that he was born on 27 April 1941.  After having had prior service in the Regular Army, he enlisted in the U. S. Army Reserve on 26 November 1974.  His notification of eligibility for retired pay at age 60 (his 20-year letter) was dated 24 June 1991.  On 21 August 1991, he enrolled in the RCSBP for spouse and children coverage, full base amount, option C. 

5.  The FSM died in an industrial accident on 4 October 1993.

6.  On 21 December 1993, the Army Reserve Personnel Center, Casualty Branch informed the applicant that the FSM was insured under the Servicemen’s Group Life Insurance program and she would be furnished claim forms by the Office, Servicemen’s Group Life Insurance.  She was informed that she should contact the local Department of Veterans Affairs Office regarding benefits to which she may be entitled.  No mention of her entitlement to the RCSBP was made.

7.  On 18 September 1999, the applicant wrote to the Army Reserve Personnel Command (AR-PERSCOM, formerly the Army Reserve Personnel Center) requesting the RCSBP.  This letter apparently was not signed at the time.

8.  On 1 October 1999, AR-PERSCOM sent the applicant an Application for Annuity, DD Form 1884.  The DD Form 1884 was received by AR-PERSCOM on 13 October 1999.  AR-PERSCOM forwarded it on to the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL), which received it on             4 November 1999 and which then forwarded it on to DFAS - Denver Center (DFAS-DE).

9.  On 7 June 2000, DFAS-DE informed the applicant that she did not sign the  18 September 1999 letter to AR-PERSCOM and all other documents were received after the six-year statute of limitations.  Therefore, DFAS-DE denied her RCSBP claim.

10.  On 27 June 2000, DFAS-DE informed the applicant’s Congressional Representative that since her 18 September 1999 letter to AR-PERSCOM was not signed it could not be considered a valid claim for the RCSBP.  All other documents concerning the claim were received after the 6-year statute of limitations barring claims against the Government.  DFAS-DE suggested that the applicant apply to the Board for one of two possible records corrections.  One would be to request that the record be changed to reflect that she signed the copy of the 18 September 1999 letter.  The other possibility would be to request that the FSM’s records be changed to show he elected RCSBP option B.

11.  In the processing of this case, an advisory opinion was obtained from Retirements and Annuities, AR-PERSCOM.  That office strongly recommended approval of the applicant’s request with payment starting with the date of the FSM’s death since the Army, as represented by the FSM’s unit, was aware of the requirements and failed to assist her.  The advisory opinion was provided to the applicant for comment and she concurred in it.

12.  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). 

13.  Title 32, 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. 

CONCLUSIONS:

1.  The FSM had enrolled in the RCSBP for spouse and children coverage, full base amount, option C, immediate coverage if he should die before age 60.

2.  After the FSM died on 4 October 1993, the Army Reserve Personnel Center informed the applicant about her insurance entitlement.  They informed her that she should contact the Department of Veterans Affairs concerning other benefits to which she might be entitled.  She was not informed that she was entitled to an RCSBP annuity, a Department of Defense program, by either the FSM’s unit or by the Army Reserve Personnel Center.  She was not aware that she could file for an RCSBP annuity until around September 1999.  

3.  The applicant sent a letter dated 18 September 1999 to AR-PERSCOM claiming the RCSBP annuity.  However, for some reason she failed to sign the letter.  By time she completed the official claim form, it was received by the Government after the 6-year statute of limitations for making a claim against the government expired.  As a matter of equity, it would be appropriate to show that the applicant’s 18 September 1999 letter was accepted on its face as signed on 18 September 1999, thereby entitling the applicant to the RCSBP annuity under the provisions of option C.

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 the applicant’s 18 September 1999 letter was accepted on its face as signed on 18 September 1999 and that AR-PERSCOM and DFAS accepted the signed 18 September 1999 letter as a valid claim for the FSM’s RCSBP annuity.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any RCSBP costs due. 

3.  That the applicant be paid an annuity based upon the FSM’s RCSBP election retroactive to 4 October 1993, the date of his death.

BOARD VOTE:  

__aao___  __teo___  __bfh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045833	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.