RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 June 2005
      DOCKET NUMBER:  AR20040009162


      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 J. Wagner             |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Ms. Delia R. Trimble              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records be corrected to
show her mother applied for the Reserve Component Survivor Benefit Plan
(RCSBP) annuity on her behalf in a timely manner.

2.  The applicant states she was the beneficiary under the RCSBP election
of her deceased father, a former service member (FSM).  Her mother made
three attempts after his death in 1996 to apply for benefits on her behalf
through the Department of Veterans Affairs (DVA).  It was not until June
2004 that they realized they had to apply to the Army for the annuity.

3.  The applicant provides a VA Form 21-534 (Application for Dependency and
Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving
Spouse or Child (Including Death Compensation if Applicable); a DVA Rating
Decision dated 21 March 1997; a printout from a DVA file; a 28 September
2004 letter from her Congressman's office; a 29 October 2004 letter from
the Defense Finance and Accounting Service (DFAS) to her Congressman; a 29
October 2004 letter from DFAS to this Board; an extract from Title 31, U.
S. Code, section 3702; a 21 September 2004 letter addressed to her
Congressman's office; and a 15 September 2004 letter authorizing her
Congressman's office to assist her.

4.  The applicant also provides a 2 August 2004 letter from the Oklahoma
National Guard, Joint Force Headquarters; a 2 August 2004 letter addressed
to the U. S. Army Reserve Personnel Command; a DD Form 1883 (Survivor
Benefit Plan Election Certificate); a DD Form 1884 (Application for Annuity
under the Retired Serviceman's Family Protection Plan (RSFPP) and/or
Survivor Benefit Plan SBP)); the FSM's NGB Form 22 (Report of Separation
and Record of Service); the FSM's notification of eligibility for retired
pay at age 60 (his 20-year letter); orders assigning the FSM to the Retired
Reserve; the applicant's birth certificate; the FSM's death certificate;
and a 27 August 2004 letter from the U. S. Army Human Resources Command –
St. Louis.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 23 January 1947.  After having had prior service,
he enlisted in the Army National Guard on 28 January 1983.

2.  The FSM's 20-year letter is dated 4 March 1991.  On 8 April 1991, he
elected to participate in the RCSBP for child only coverage, full base
amount, option C.  The applicant, who was born on 8 February 1986, was
listed as his only child.

3.  The FSM died on 7 May 1996.  The applicant apparently first applied to
the Army for the RCSBP annuity around August 2004.

4.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.  The term “dependent
child” means a person who is unmarried; is under 18 years of age or at
least 18 but under     22 years of age and pursuing a full-time course of
study in a high school, college, or comparable recognized educational
institution; is incapable of self support because of a mental or physical
incapacity existing before the person’s 18th  birthday, or is the child of
a person to whom the Plan applies including an adopted child, a step or
foster child or a recognized natural child who lived with that person in a
regular parent-child relationship.

5.  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.

6.  Title 31 U. S. Code, section 3702, also known as the barring act,
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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM had elected child only RCSBP coverage in April 1991, full base
amount, option C.  When he died in 1996, the applicant was 10 years old and
was an eligible RCSBP beneficiary.

2.  The applicant's mother applied to the DVA instead of to the Army for
the RCSBP annuity.  She did not apply to the Army for the annuity until
2004, after the statute of limitations had expired.

3.  At least one of the reasons behind the barring act was not of major
importance in this case.  The applicable records were readily accessible
and the applicant's case was not difficult to prove.  Therefore, it would
be equitable to correct the records to show that an application for the
RCSBP was submitted in a timely manner and to pay the applicant the
annuity.

BOARD VOTE:

__rjw___  __kwl___  __drt___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing that the applicant's mother completed and returned the
DD Form 1884 and related documents to the proper office on 1 May 1996 and
that they were received and processed by the proper office in a timely
manner.

2.  That the applicant be paid a lump sum payment for any past annuity due
based upon the above corrections retroactive to the date of the FSM’s death
for as long as she can verify her entitlement (i.e., to age 18 or later if
she had met the applicable criteria) and any future annuity payments which
she might be due.




            __Raymond J. Wagner___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040009162                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050616                                |
|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.                      |                                        |


-----------------------
[pic]