PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 March 2002
         DOCKET NUMBER: AR2001062786


         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:

Ms. Joann H. Langston		Chairperson
Mr. Walter T. Morrison		Member
Mr. Roger W. Able		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, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he received his notification of eligibility for retired pay at age 60 (his 20-year letter) and enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for children only coverage, option C.

3. The applicant states the FSM died on 24 May 2001 and was sent his 20-year letter on 26 July 2001. He was never afforded the opportunity to enroll in the RCSBP. She feels that he would have elected coverage for their two minor sons.

4. The FSM’s military records show that he was born on 3 May 1950. He initially had service in the U. S. Marine Corps and the U. S. Marine Corps Reserve from May 1967 – May 1979. The FSM and the applicant married on 22 April 1987. They had twin sons born on 18 June 1989. He enlisted in the Army National Guard on 2 March 1990.

5. The FSM and the applicant divorced on 8 May 2001. The divorce decree did not mention the SBP.

6. The FSM died on 24 May 2001 of an acute myocardial infarction as a consequence of coronary artery disease from which he suffered for several years.

7. An Army National Guard Retirement Points History Statement, NBG Form 23B, prepared on 26 July 2001 shows that the FSM had 20 years, 2 months, and 20 days of creditable service for retired pay as of the date of his death. The Tennessee Army National Guard (TNARNG) issued his 20-year letter on 26 July 2001.

8. On 7 August 2001, the FSM’s commander wrote to the U. S. Army Reserve Personnel Command (AR-PERSCOM) requesting the RCSBP for the applicant and her children. He provided several documents with the letter but it appears the NGB Form 23B was not one of them. On 11 August 2001, the Retirement Services Noncommissioned Officer, TNARNG wrote to AR-PERSCOM requesting the RCSBP for the applicant and her children. She provided several documents with the letter but it appears the NGB Form 23B was not one of them.

9. On 18 August 2001, AR-PERSCOM responded to the TNARNG explaining in part that the FSM would not have completed 20 qualifying years of service until 1 March 2002. Apparently, not all of the FSM’s record of retirement points reached AR-PERSCOM.

10. 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 occurs before age 60, the costs for options B and C are deducted from the annuity. 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.

11. Title 10, U. S. Code, section 12738 states that after a person is granted retired pay or is notified in accordance with section 12731(d) that the person has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed unless it resulted directly from the fraud or misrepresentation of the person. The number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, misinformation, or administrative determination, and when such a correction is made the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date the person is granted retired pay. Section 12731(d) states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for non-regular service retired pay. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. The notice shall include notice of the elections available to such person under the SBP.

CONCLUSIONS:

1. The Board concludes that there is no Government error in this case but it would be appropriate to grant the relief requested based on equity.

2. According to TNARNG records, the FSM would have completed his 20 years of qualifying service for retired pay around 4 March 2001. By law, the Army had until around 4 March 2002 to send him his 20-year letter. Unfortunately, the FSM died on 24 May 2001 and the TNARNG did not get his 20-year letter out until 26 July 2001. Therefore, it was impossible for the FSM to have made an RCSBP election.

3. The Board is cognizant that AR-PERSCOM’s records do not show that the FSM had attained 20 qualifying years as of the date of his death. Nevertheless, once the 20-year letter was issued his eligibility for retired pay could not be denied. It would be appropriate for the ARNG to coordinate with AR-PERSCOM on calculating the FSM’s retirement points and to provide AR-PERSCOM with any evidence of retirement points earned as needed. However, the FSM’s retired pay calculations will be officially determined by AR-PERSCOM’s final calculation of his creditable years of service.

4. The Board concludes that the FSM would have elected RCSBP coverage for his minor children, option C had he received his 20-year letter before he died. The FSM had just divorced the applicant (the divorce decree made no mention of the SBP) and he had had health problems for several years. It is reasonable to presume that he would have wanted this financial security for his children.

5. In view of the foregoing, the applicant’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 FSM’s 20-year letter was issued on 1 April 2001 and that he made an RCSBP election of children only coverage, full base amount, option C on 1 May 2001.

2. That the Army National Guard coordinate with AR-PERSCOM on calculating the FSM’s retirement points and correct creditable service for pay and provide AR-PERSCOM with any evidence of retirement points earned as needed.

3. That the FSM’s minor children be paid the RCSBP annuity retroactive to the date of his death. After the coordination recommended in paragraph 2 above has been completed, the amount of the annuity will be adjusted as required.

BOARD VOTE:

__jhl___ __wtm___ __rwa___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Joann H. Langston
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001062786
SUFFIX
RECON
DATE BOARDED	20020314
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	137.04
2.
3.
4.
5.
6.