PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2001064595


         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
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. John T. Meixell		Member
Mr. Harry B. Oberg		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, the widow of the former service member (FSM), requests that her late husband’s records be corrected to show that he was transferred to the Retired Reserve prior to his death on 4 April 1999.

3. The applicant states that it is an injustice that her late husband applied for transfer to the Retired Reserve on 2 April 1999, but his request wasn’t honored before his death on 4 April 1999.

4. In support of her application, she submits a letter from the FSM’s former commander, who states that he learned that the FSM was seriously ill in March 1999. Approximately a week before his death, he talked to the FSM who told him that he wanted to retire and that he wanted to elect Option B of the Survivor Benefit Plan (SBP). In response, he had the papers prepared to honor the FSM’s request and planned to go to visit the applicant on 5 April 1999, so he could sign the papers. Unfortunately, the FSM died on 4 April 1999.

5. The applicant also submits a statement from her late husband’s Personnel Services Noncommissioned Officer (PSNCO) who states that he talked to the FSM prior to his death and the FSM said that he wanted to retire and to participate in SBP, Category B.

6. The FSM’s military records show that he enlisted in the Regular Army on 18 August 1958, and was honorably released from active duty in pay grade E-5 on 19 June 1961.

7. He was commissioned as a first lieutenant, Army Reserve (USAR), on 8 August 1966, and was assigned to a USAR troop program unit on 17 August 1966. He was awarded the area of concentration of military intelligence.

8. On 2 July 1973, the FSM enlisted in the USAR in the rank of Specialist 7, which terminated his commission. The FSM had twice been considered, but not selected, for promotion to captain.

9. The FSM was promoted to pay grade E-8. On 29 June 1982, the FSM was notified of his eligibility to receive retired pay for non-regular service at age 60.

10. On 5 February 1983, the FSM was appointed as a Chief Warrant Officer 2 (CW2). On 4 February 1989, he was promoted to CW3. On 8 March 1995, he was promoted to CW4.





11. On 2 April 1999, orders were issued transferring the FSM to the Retired Reserve.

12. On 4 April 1999, the FSM died. He was 61 years old at that time.

13. 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.

14. Public Law 95-397, the Reserve Component SBP (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. Option B and C participants do not make a new SBP election at age 60; it automatically rolls over into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

15. Title 10, US Code, §1448, states that the following persons are eligible to participate in the Plan (SBP): Persons entitled to retired pay; Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. The Plan applies to the following persons: Standard annuity participants; A person who is eligible to participate in the Plan and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse's concurrence, if required) not to participate in the Plan before the first day for which he is eligible for that pay; A Reserve Component annuity participant, defined as a person who is eligible to participate in the Plan and is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouse's concurrence, if required) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification.







A person who elects not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan in accordance with eligibility criteria outlined in this section.

CONCLUSIONS:

1. Since orders were issued transferring the applicant to the Retired Reserve, the applicant’s request, to have her late husband transferred to the Retired Reserve, is apparently not what she actually wants the Board to correct. It would appear that she wants her late husband’s records corrected to show that he made application for retired pay at age 60, that he elected SBP, and that his application for retired pay and application for SBP were accepted prior to his death.

2. It is evident that the FSM requested transfer to the Retired Reserve, to make application for retired pay, and to elect full base amount SBP. The statements provided by the applicant make this abundantly clear. Given the fact that the FSM was diagnosed as having a fatal disease and was given less than 3 months to live, such elections would be the only reasonable ones he had available to him.

3. Based on the short time the FSM’s unit had to process him for retirement, it is not surprising that all of the required actions were not completed in a timely manner. However, it is not fair or equitable to penalize the FSM’s wife because of the unit’s inability to expeditiously complete his retirement processing.

4. Since the FSM was over 60 years of age at the time of his death, the SBP Option is not an issue. The FSM’s choices were straightforward, to participate in SBP or not, and if he chose SBP, to decide whether he wanted full or partial coverage.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

         a. showing that the individual concerned made application for retired pay on 2 April 1999;





         b. showing that he made application for SBP, full base amount, on 2 April 1999;

         c. showing that both his application for retired pay and SBP was approved on 3 April 1999; and

         d. paying to the applicant all monies due to her as a result of this correction.

BOARD VOTE:

___jtm___ ___tsk _ ____hbo_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _________Ted S. Kanamine_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001064595
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020711
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.14
2.
3.
4.
5.
6.