PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002075563

	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. Fred N. Eichorn | | Chairperson
| Ms. Barbara J. Ellis | | Member
| Mr. William D. Barr | | 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 applied for retired pay and that she be paid the Survivor Benefit Plan (SBP) annuity.

3.  The applicant states that she believes the FSM met the criteria for retired pay and therefore she is entitled to an SBP annuity.

4.  The FSM’s military records show that he was born on 6 March 1941.  He enlisted in the U. S. Marine Corps in 1959.  He and the applicant married on       20 June 1964.  He enlisted in the Army National Guard in April 1975.  

5.  The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) was prepared on 5 May 1990.  On 30 May 1990, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883, and elected to participate in the Reserve Component SBP (RCSBP) for spouse only coverage, full base amount, option C.

6.  The FSM died on 13 March 2001, one week after reaching age 60.  His death certificate shows that he died of chronic renal failure from which he suffered for about 2 years.  Records at the U. S. Army Reserve Personnel Command show that he never applied for retired pay.

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 does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.

8.  Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

CONCLUSIONS:  

1.  The evidence of record shows the FSM elected to participate in the RCSBP when he received his 20-year letter in 1990; however, he failed to apply for retired pay in a timely manner and he died one week after he would have been eligible to receive retired pay after a lengthy illness.  He honorably served the Army for over 20 years and earned his retired pay.  His spouse, the applicant, helped him earn his retired pay.

2.  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 the FSM applied for retired pay on 1 September 2000, naming the applicant as his beneficiary for unpaid retired pay, and returned the application to the appropriate office in a timely manner where it was processed in a timely manner to be effective upon his reaching age 60 on 6 March 2001.

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 the RCSBP annuity effective 13 March 2001, the date of the FSM’s death.

BOARD VOTE:  

__FNE __  __ BJE  _  __WDB __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn  _
		   CHAIRPERSON

INDEX

CASE ID | AR2002075563
SUFFIX |
RECON |
DATE BOARDED | 2002/09/10
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | GRANT
REVIEW AUTHORITY |
ISSUES         1. | 136.04
2. |
3. |
4. |
5. |
6. |