PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           28 August 2001                   
	DOCKET NUMBER:   AR2001059181

	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	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 she applied for the Reserve Component Survivor Benefit Plan (RCSBP) annuity in a timely manner.

3.  The applicant states, in effect, that the FSM completed the Survivor Benefit Plan Election Certificate, DD Form 1883, and elected option C shortly before he died.  She was told by the FSM’s unit that all the necessary paperwork had been filed by them on her behalf so she could receive the RCSBP.  However, she was repeatedly told by personnel at the Army Reserve Personnel Center (ARPERCEN) that she would not receive the annuity until the date the FSM would have reached either age 55 or age 60.  The FSM would have turned age 55 this year but when she tried to apply for the annuity she was told that the statute of limitations had expired.  

4.  The FSM’s military records show that he was born on 18 December 1946.  After having had prior service in the Regular Army, he entered the U. S. Army Reserve on 21 November 1974.  

5.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 2 November 1993.  On 5 December 1993, the FSM completed a DD Form 1883.  At that time, he enrolled in the RCSBP for spouse and children coverage, option C, full base amount.  On 2 February 1994, the FSM died of colon cancer.  

6.  On 15 February 1994, the FSM’s unit submitted a casualty report notifying ARPERCEN that he had died.  By memorandum dated 6 June 2001, the unit’s commander confirmed that the FSM had enrolled in the RCSBP in December 1993, electing option C.  Upon his death, the applicant had filled out the appropriate paperwork and submitted her claim to receive the annuity (although it appears the DD Form 1883 was submitted rather than an application for annuity, DD Form 1884).  The unit confirmed that ARPERCEN told the applicant that the paperwork had been received but she was not entitled to the annuity until the FSM would have reached age 55.

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. 

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.  There is evidence of Government error in this case.

2.  On 5 December 1993, the FSM enrolled in the RCSBP for spouse and children coverage, full base amount, option C, immediate coverage if he should die before age 60.

3.  When the FSM died in February 1994, the FSM’s unit assisted the applicant in applying for the RCSBP annuity.  Unfortunately, it appears the unit presumed that submission of the recently-completed DD Form 1883 constituted an application for the annuity.  It appears that ARPERCEN did receive the DD Form 1883, along with the casualty report.  However, instead of informing the applicant that she had to submit a DD Form 1884, ARPERCEN told the applicant that she was not entitled to the annuity until the time the FSM would have reached either age 55 or age 60.  They gave her this erroneous information even though the DD Form 1883 clearly stated that the FSM had elected immediate coverage.  Later, when she reapplied for the RCSBP annuity at the time she was told to reapply, she was informed that the 6-year statute of limitations for making a claim against the government expired.

4.  The Board is not altering the date the applicant applied for the annuity.  The Board is correcting the records to show she submitted the correct application form at the time she originally applied for the annuity and that the form was properly processed.

5.  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 15 February 1994 the FSM’s unit submitted a DD Form 1884 completed by the applicant along with the casualty report and that the DD Form 1884 was received by ARPERCEN and properly processed in a timely manner.

2.  That the applicant be paid the RCSBP annuity retroactive to the date of the FSM’s death.

BOARD VOTE:  

__jns___  __rtd___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059181	
SUFFIX		
RECON		
DATE BOARDED	20010828	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.