PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 April 2002
         DOCKET NUMBER: AR2002066486


         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. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		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.

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2. The applicant requests that the records be corrected to show she applied for the Reserve Component Survivor Benefit Plan (RCSBP) annuity in a timely manner.

3. The applicant states that she had no prior knowledge of her entitlement to a portion of the retired pay of her deceased spouse, a former service member (FSM), under the RCSBP until recently. She has now been told that the statute of limitations prevents her from filing a claim.

4. The FSM’s military records show he was born on 19 September 1945. He and the applicant married on 20 July 1968. After having had prior service in the U. S. Marine Corps, he enlisted in the U. S. Army Reserve on 28 October 1978. His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 31 October 1994. His Survivor Benefit Plan Election Certificate, DD Form 1883, is not available. The U. S. Army Reserve Personnel Command (AR-PERSCOM) verified that the DD Form 1883 was received by them on 6 December 1994 and the FSM had elected spouse only coverage, full base amount, option C.

5. The FSM died on 21 March 1995. By letter dated 5 June 1995, Casualty Branch, U. S. Army Reserve Personnel Center (later redesignated AR-PERSCOM) informed the applicant about her entitlement to the FSM’s Servicemen’s Group Life Insurance and suggested she contact her local Department of Veterans Affairs office to determine her entitlement to other benefits. No mention was made of her entitlement to the RCSBP.

6. 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 does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity

7. 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.

8. 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.

9. In the processing of this case, an advisory opinion was obtained from AR-PERSCOM. AR-PERSCOM noted that the applicant applied to that agency on 21 April 1995 for any and all benefits due her as a result of the death of her spouse. The written application (for the RCSBP) and death certificate were never received in the Survivor Benefit section. AR-PERSCOM recommended approval of the applicant’s request.

10. A copy of the advisory opinion was provided to the applicant for comment. She concurred with the advisory opinion.

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. Two months after the FSM’s death the Army informed the applicant by letter she was entitled to the FSM’s Servicemen’s Group Life Insurance. The Army failed to inform her that she was also entitled to the RCSBP. To deny her the RCSBP annuity now would be an injustice.

4. It would be appropriate to show that the applicant submitted the RCSBP annuity application with supporting documents on 21 April 1995, the date she applied for any and all benefits due her, thereby entitling her to the RCSBP annuity.

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 the applicant completed and returned the RCSBP annuity application and supporting documents to the proper office on 21 April 1995 and that they were received and processed by the proper office in a timely manner.

2. That the applicant be paid an annuity based upon the above corrections retroactive to 21 March 1995, the date of the FSM’s death.

BOARD VOTE:

__fne___ __bje___ __reb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Fred N. Eichorn
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002066486
SUFFIX
RECON
DATE BOARDED	20020418
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	137.01
2.
3.
4.
5.
6.