PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002070340


         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		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 of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

3. The applicant states that the FSM suffered a mental nervous breakdown in the summer of 1978 and was involuntarily committed to a psychiatric center in October 1978. He suffered from his mental illness from this time until his death in 1994. He was not mentally competent at the time he could have enrolled in the RCSBP.

4. The FSM’s military records show that he was born on 3 August 1937. He initially entered the U. S. Air Force in 1955. He entered the Army National Guard in 1962. He and the applicant married on 3 November 1968. He was appointed a warrant officer in the Army National Guard in 1970. His notification of eligibility for retired pay at age 60 (his 20-year letter) is not available but records at the U. S. Army Reserve Personnel Command indicate he attained 20 qualifying years of service on or about 27 August 1975. He was discharged from the Army National Guard on 28 March 1978.

5. On 6 October 1978, the FSM was involuntarily admitted to a psychiatric center for an unknown reason. A letter dated 24 May 1984 from a Doctor Carroll indicates the FSM was suffering from a severe emotional illness. In November 1991, he made a serious suicide attempt. On 7 January 1992, he was involuntarily admitted again with an admitting diagnosis of bipolar disorder, depressed, severe, without psychotic features. He died on 10 November 1994.

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. An Open Season was established from 1 October 1978 – 30 September 1979; later extended to 31 March 1980.

7. Public Law 97-35, enacted 12 August 1981, established an Open Season from 1 October 1981 – 30 September 1982.

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8. Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. Public Law 101-510, enacted 5 November 1990, delayed the start of the Open Season to 1 April 1992 – 31 March 1993.

9. Title 10, U. S. Code, section 1449(a) provides that, if a person eligible to participate in the SBP is determined to be mentally incompetent by medical officers of the armed force concerned or of the Department of Veterans Affairs, or by a court of competent jurisdiction, an election may be made on behalf of that person by the Secretary concerned.

10. 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.

11. 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.

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CONCLUSIONS:

1. The Board concludes that it would be equitable in this case to show the FSM enrolled in the RCSBP when first eligible to do so. The RCSBP was enacted on 30 September 1978. On 6 October 1978, the FSM was involuntarily admitted to a psychiatric center. He continued to have psychiatric problems, to include at least one more involuntary admission, the rest of his life. It is clear to the Board that the FSM was not rational at the time he first had the opportunity to enroll or during either of the two subsequent Open Seasons.

2. The FSM died in 1994. 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. 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. It would be appropriate to show that the FSM was determined by a court of competent jurisdiction to be mentally incompetent on 6 October 1978 and that the Secretary made a decision to enroll the FSM in the RCSBP on 7 October 1978 for spouse coverage, full base amount, option C. It would also be appropriate to show that the applicant submitted a claim for the RCSBP annuity on 1 December 1994, thereby entitling her to the annuity. It would be appropriate to collect any and all RCSBP premiums due as a result of this correction.

4. 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:

a. showing that the FSM was determined by a court of competent jurisdiction to be mentally incompetent on 6 October 1978 and that the Secretary made a decision to enroll the FSM in the RCSBP on 7 October 1978 for spouse coverage, full base amount, option C; and

b. showing that the applicant submitted a claim for the RCSBP annuity on 1 December 1994.

2. That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any RCSBP costs due.

3. That the applicant be paid an annuity based upon the above correction to the FSM’s records retroactive to 10 November 1994, the date of his death.

BOARD VOTE:

_RVO___ ___JPI__ __PM____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond V. O’Connor, Jr._
                  CHAIRPERSON

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INDEX

CASE ID	AR2002070340
SUFFIX
RECON
DATE BOARDED	2002/05/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	137.04
2.
3.
4.
5.
6.