PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2003
	DOCKET NUMBER:   AR2002077913

	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. Walter T. Morrison		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Yolanda Maldonado		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 former spouse, a former service member (FSM), be corrected to show he applied for retired pay, elected to participate in the Survivor Benefit Plan (SBP), and changed his SBP coverage to former spouse coverage upon their divorce.

3.  The applicant states that the FSM attempted to notify the Army of his election to enroll her in the SBP.  Both her attorney and the FSM's attorney notified her that the appropriate election forms were mailed to the Army.  The FSM then died and the Army told her he had filed an inappropriate document to make the proper election.  She provides a copy of the document; it clearly attests to his intention.  

4.  The FSM's military records are not available.  Information contained herein was obtained from alternate sources.

5.  The FSM was born on 8 August 1941.  A Retirement Points Summary sheet shows the FSM entered a reserve component on 27 September 1960.  He and the applicant married on 11 July 1971.  As of retirement year ending date            1 November 1991, he had 21 years of qualifying service for a reserve retirement. His notification of eligibility for retired pay at age 60 (his 20-year letter) is not available; however, a 22 May 2002 letter from the U. S. Army Reserve Personnel Command (AR-PERSCOM), Transition and Separations Branch, indicates one was sent out.

6.  On 8 August 2001, the FSM turned age 60.  Records at the Defense Finance and Accounting Service indicate he did not apply for retired pay.

7.  A Discharge Summary  from MedStar Health, Franklin Square Hospital Center, Baltimore, MD, shows that on 3 April 2002 the FSM was hospitalized for complaints of abdominal pain.  His past medical history of lung cancer with metastases, nonsquamous, stage IIIB was noted.  A head CT scan performed on 7 April 2002 appeared to be normal but a CT scan of the abdomen revealed extensive metastases.  He was started on chemotherapy.  His clinical status gradually deteriorated.

8.  On 10 April 2002, the FSM sent a note to AR-PERSCOM advising them that he and the applicant divorced and that he desired that she be carried as his SBP annuitant as his former spouse.

9.  On 11 April 2002, it was ordered that the applicant was granted a Judgment of Absolute Divorce from the FSM.  The divorce decree ordered the FSM to pay all SBP premiums necessary to ensure the full SBP benefits would be paid to the applicant.

10.  On 11 April 2002, on or about 2:50 p.m., the FSM was evaluated for unresponsiveness and pronounced dead.
11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  It SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

12.  Public Law 95-397, the Reserve Component SBP, 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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  

14.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

15.  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 failed to apply for retired pay upon turning age 60 in August 2001.  However, he honorably served the Army for over 20 years and earned his retired pay.  

2.  It appears the FSM believed he was enrolled in the SBP.  On 10 April 2002, the day before his divorce became final, he indicated his intention to provide the SBP to the applicant, soon to become his former spouse.  The divorce became final on 11 April 2002.  The FSM died on the afternoon of 11 April 2002.

3.  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 the FSM applied for retired pay on 1 June 2001, electing at that time to enroll in the SBP for spouse coverage, full base amount, 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 8 August 2001; and

     b.  further showing that the FSM's 10 April 2002 note informing the Army that he was divorced and requesting that his SBP coverage be changed to former spouse coverage was accepted by the proper office for processing.

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

3.  That the applicant be paid the SBP annuity effective 11 April 2002, the date of the FSM’s death.

BOARD VOTE:  

__WTM__  __CJP  _  __YM  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Walter T. Morrison_  __
		        CHAIRPERSON

INDEX

CASE ID	AR2002077913	
SUFFIX		
RECON		
DATE BOARDED	2003/01/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.