ABCMR Proceedings (cont)                                                        AR2003084100

PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            26 June 2003      
	DOCKET NUMBER:   AR2003084100

	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. Walter T. Morrison | | Chairperson
| Mr. Lester Echols | | Member
| Mr. Lawrence Foster | | 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 of her deceased spouse, a former service member (FSM), be corrected to show he received his notification of eligibility for retired pay at age 60 (his 20-year letter) and that he elected to enroll in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

3.  The applicant states, in effect, that the FSM never received his 20-year letter.

4.  The FSM's military records show that he was born on 29 December 1937.   He enlisted in the U. S. Army Reserve in February 1956.  He and the applicant married on 6 September 1958.

5.  In January 2003, the U. S. Army Reserve Personnel Command (AR-PERSCOM) found records that contained all of the FSM's retirement point cards. In computing his service, AR-PERSCOM discovered the FSM continued in an active status until 1985 and should have received his 20-year letter in 1976.  

6.  The FSM died on 3 November 1992 at age 54.

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 60^th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

8.  Title 10, U. S. Code, section 1448(f)(1)(B) states that the Secretary concerned shall pay an RCSBP annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies during the 90-day period beginning on the date he receives his 20-year letter.

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.  Pride v. United States, 40 Fed Cl. 730 (1998) provided that if a Board correction gives rise to the claim, the barring statute does not start to run until the Board orders the correction.

CONCLUSIONS:

1.  The evidence of record shows the FSM completed his 20 years of service for a non-Regular retirement in 1976; however, he was never issued a 20-year letter. Because he never received his 20-year letter, he never had an opportunity to enroll in the RCSBP when it was established in 1978 or during subsequent open enrollment seasons.

2.  The FSM died in November 1992.  AR-PERSCOM has only recently, more than 6 years later, discovered the documents that confirm he was eligible to receive his 20-year letter in 1976.  

3.  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 FSM’s spouse’s case was not difficult to prove.  

4.  If the Board directed that AR-PERSCOM prepare a 20-year letter for the FSM, however, the barring statute would not start to run until the correction was ordered.  In addition, since it is impossible for the FSM to make an RCSBP election during the 90-day period beginning on the date he would have received his 20-year letter (since the FSM is already deceased), the applicant would automatically be entitled to the RCSBP annuity.  

5.  The applicant was married to the FSM for the majority of his military career and the FSM earned a 20-year letter.  It would be inequitable to deny the applicant the RCSBP annuity because of Government error and the passage of time.

6.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.  issuing to the FSM a 20-year letter; and

     b.  showing that the applicant is entitled to an RCSBP annuity based upon the Board-directed issue of the FSM's 20-year letter and his inability due to death to make an RCSBP election within 90 days of its receipt.

BOARD VOTE:  

__wtm___  __le____  _lf_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Walter T. Morrison__
		        CHAIRPERSON

INDEX

CASE ID | AR2003084100
SUFFIX |
RECON |
DATE BOARDED | 20030626
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | GRANT
REVIEW AUTHORITY | Mr. Schneider
ISSUES         1. | 135.00
2. | 137.01
3. |
4. |
5. |
6. |