PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            22 May 2003       
	DOCKET NUMBER:   AR2003084209

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Gail J. Wire		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, in effect, that the records be corrected to show she applied for the Reserve Component Survivor Benefit Plan (RCSBP) in a timely manner.

3.  The applicant states that when her deceased spouse, a former service member (FSM), died in June 1996, the California Army National Guard (CAARNG) told her that she was entitled to his civil service survivor benefits but she was not eligible for the RCSBP because he did not have 20 years of service. It was only around October 2002 that the Rhode Island Army National Guard (RIARNG) told her she was eligible for the RCSBP.  By that time, the Defense Finance and Accounting Service (DFAS) said the barring statute barred her from ever receiving the RCSBP annuity.  

4.  The FSM's military records show that he was born on.  After having had prior service in the Regular Army and U. S. Army Reserve, he entered the Army National Guard in 1986.

5.  On 20 December 1995, the FSM was issued a notification of eligibility for retired pay at age 60 (a 15-year letter) on 20 December 1995.  On 28 February 1996, he was discharged from the Army National Guard for being medically disqualified for further service.  At that time, he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) and elected to participate in the RCSBP for spouse and children coverage, full base amount, option C.  

6.  The FSM died on 28 June 1996.

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 10. U.S. Code, section 12731a was the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who had completed at least 15, and less than 20, years of qualifying service and who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability, and upon the request of the member, could be transferred to the Retired Reserve and be provided with the notification required if he had completed at least 15 years of service.
9.  Title 31, U. S. Code, section 3702, also known as the barring statute, 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.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

10.  On 17 October 1998, the National Defense Authorization Act for Fiscal Year 1999 (NDAA FY 99) became law.  Section 545(c) required the Department of Defense (DoD) to submit a report to Congress concerning the 6-year statute of limitations contained in Title 31, U. S. Code, section 3702(b), commonly referred to as the barring act.  The Secretary of Defense was to make a recommendation whether it was appropriate for the Secretaries of the military departments to have authority to waive that limitation in selected cases involving implementation of decisions of the Secretary of a military department under chapter 79 (Correction of Military Records) of Title 10, U. S. Code.  In its report, DoD did not recommend that the Secretaries of the military departments have specific statutory authority to waive the 6-year limitation in Title 31, U. S. Code, section 3702 in such cases. DoD noted that there presently exists in current law substantial authority to counteract the effects of the statute of limitations in the context of military records corrections.  DoD also noted that Title 10, U. S. Code, section 1552(g), which was amended in 1998 to expand the definition of “military record,” now provides discretionary authority to change records to show a valid submission of a claim by a member or beneficiary within the period prior to expiration of the statute of limitations.  Therefore, section 1552 already contains the authority necessary to take action that will, in effect, waive the 6-year limitation in a wide spectrum of cases.

CONCLUSIONS:

1.  In accordance with Title 10, U. S. Code, section 1552(g), as cited in the DoD NDAA FY 1999, section 545(c) Review of the Barring Act Report, the Board may change records to show a valid submission of a claim by a member or beneficiary within the period prior to the expiration of the statute of limitations.  

2.  At least one of the reasons behind the barring statute was not of major importance in this case.  The applicable records were readily accessible and the applicant's case was not difficult to prove.  

3.  The Board concludes that such a records correction would be equitable in this case.  The FSM was discharged from the Army National Guard in February 1996 due to being medically disqualified for retention.  At that time he enrolled in the RCSBP for spouse and children coverage.  He died 4 months later and the CAARNG provided casualty assistance to the applicant.  Unfortunately, the CAARNG erroneously told her she was not eligible for the RCSBP even though the FSM had elected option C.  She was not made aware she was entitled to the SBP until 6 years later when the RIARNG assisted her with a problem and realized she had been entitled to the RCSBP.  Unfortunately again, the 6-year statute of limitations for making a claim against the Government had passed.  To deny her the SBP annuity now would be an injustice.  

4.  It would be equitable to show that the applicant submitted the DD Form 1884 on 1 July 1996, thereby entitling her to the RCSBP annuity.  

5.  In view of the foregoing, the 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 submitted a claim for the RCSBP annuity with all related documents to the proper office on 1 July 1996 and that they were received and processed by the proper office in a timely manner.

2.  That the applicant be advised that DFAS will be instructed to collect any RCSBP costs due. 

3.  That the applicant be paid an annuity based upon the above corrections.

BOARD VOTE:  

__rvo___  __sk____  __gjw  ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O'Connor_
		        CHAIRPERSON

INDEX

CASE ID	AR2003084209	
SUFFIX		
RECON		
DATE BOARDED	20030522	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.