PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 August 2000                   
	DOCKET NUMBER:   AR1999034548

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, 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, in effect, that she be paid a Survivor Benefit Plan (SBP) annuity based on the Reserve Component SBP (RCSBP) election of her deceased spouse, a former service member (FSM).

3.  The applicant, through her counsel, states that at no time did the Army advise her about her benefits under the SBP or any other benefits.  She was under the impression that she should apply for the SBP when she reached age 60.  However, when she did so, she was informed that the Barring Statute prevented the payment of the annuity to her.

4.  The FSM’s military records show that he was born on 28 December 1926.  After having had prior active duty, he served in the U. S. Army Reserve from 1946 until 1971.  He had received his notification of eligibility for retired pay at age 60 (his 20-year letter) in August 1971 and was transferred to the Retired Reserve in September 1971.

5.  The evidence of record at the U. S. Army Reserve Personnel Command    (AR-PERSCOM) shows that the FSM enrolled in the RCSBP for option C, immediate coverage if he should die before age 60, on an unknown date.

6.  On 22 October 1981, the FSM died.  The applicant notified the VA of his death in 1983, who in turn notified the Army.

7.  On 8 December 1995, the applicant wrote to the U. S. Army Reserve Personnel Center (predecessor to AR-PERSCOM) informing them it had been brought to her attention that she was eligible for the FSM’s pension.  Subsequent correspondence to her from the Defense Finance and Accounting Service (DFAS) and from AR-PERSCOM informed her that since she filed outside of the 6-year limit after the FSM’s death she was not eligible for the SBP.

8.  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.

9.  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. 

10.  In accordance with the Supreme Court case of Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corporation of California, Inc., 522 U. S. 192, (1997) and Nicholas v. United States, 42 Federal Claims 373, (1998) the continuing claim doctrine applies to SBP cases.  Thus, “each installment payment accruing with respect to an SBP annuity gives rise to a separate, distinct claim.”

CONCLUSIONS:

1.  The Board accepts the applicant’s contention that she was not counseled regarding the RCSBP.  The FSM was already in the Retired Reserve when he enrolled in the RCSBP shortly after it was established.  Counseling procedures for active reserve members were not yet fully established, much less so for retired members.  By believing she could not apply for RCSBP benefits until she turned age 60 the applicant was denied those benefits as a result of the 6-year statute of limitations when she finally did apply.

2.  A corrections board cannot alter the date the FSM applied for the RCSBP.  The Board can, and concludes that it is appropriate to, correct his records to show he elected option B, coverage effective the date he would have reached age 60, 28 December 1986.  This would provide for a lower cost being deducted from the annuity.  

3.  Title 31, U. S. Code, section 3702(b), the Barring Act, 6-year statute of limitations would still bar the applicant from being paid an annuity retroactive to the date the FSM would have turned age 60, 28 December 1986.  However, in accordance with the court case cited in paragraph 10 above, the applicant is entitled to annuity payments accruing within six years preceding her 8 December 1995 claim to DFAS.  The SBP is a monthly payment.  Each installment payment accruing with respect to an SBP annuity gives rise to a separate, distinct claim and those arising within six years preceding her suit are not time barred.  The statue of limitations bars only annuity payments which came due more than six years prior to the applicant’s 8 December 1995 claim.  Payments retroactive to December 1986 would still be barred; however, payments from on or about December 1989 to the present would be payable.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records 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 March 1980 the FSM made an RCSBP election of “spouse only,” option B, full base amount, and returned the election form to ARPERCEN for processing, thereby allowing the applicant to become an eligible annuitant on the anniversary of the FSM’s 60th birthday.

2.  That the applicant be paid an SBP annuity retroactive to on or about December 1989, 6 years preceding her 8 December 1995 claim to DFAS.

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

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

BOARD VOTE:  

__dsj___  __kak___  __ewl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Deborah S. Jacobs
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999034548	
SUFFIX		
RECON		
DATE BOARDED	20000801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.