RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 15 January 2004
         DOCKET NUMBER: AR2003089159


         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Allen L. Raub		Member
Mr. William D. Powers		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he completed 20 qualifying years of service for a non-Regular retirement and that she be entitled to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2. The applicant states, in effect, that she does not understand why the appropriate notifications were not made.

3. The applicant provides a copy of DD Form 1884 (Application for Annuity under the Retired Serviceman's Family Protection Plan (RSFPP) and/or Survivor Benefit Plan (SBP)).

4. The applicant provides a copy of a Direct Deposit Sign-up Form.

5. The applicant provides a copy of Form W-4 for the year 2002.

6. The applicant provides a copy of a Declaration and Registration of Informal Marriage, for Bexar County, Texas, dated June 29, 1984.

7. The applicant provides a copy of a Certificate of Death for the FSM from the San Antonio Metropolitan Health District. The FSM died on 9 November 1988.

8. The applicant provides a memorandum ("20-year letter"), dated 14 January 2003, which notified the FSM that he had completed the required 20 years of service and that he would be eligible for retired pay upon application at the age of 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 1223.

9. The applicant provides a copy of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 22 September 1960, 21 August 1964, 25 July 1969, 11 February 1971, and 1 July 1976.

10. The applicant provides a copy of the National Guard Bureau Retirement Credits Record.

11. The applicant provides a copy of DA Form 1380 (Army Reserve Record of Individual Performance of Reserve Duty Training) dated 6 June 1983.

12. The applicant provides a copy of NGB Form 22 (Report of Separation and Record of Service for the period ending 9 May 1981, 24 April 1982, 7 January 1983, and 7 June 1983.


CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 15 September 1987. The application submitted in this case is dated 2 April 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The FSM's military records show that he was born on 8 November 1939 and enlisted in the Regular Army (RA) on 11 July 1958. He served on active duty until he was honorably separated on 21 August 1964. He was without service from 22 August 1964 to 20 November 1968. On 21 November 1968, he again enlisted in the RA and served on active duty until 1 July 1976. Following this period of RA service, he was credited with a total of 13 years, 8 months, and 22 days of active Federal service.

4. From 2 July 1976 to 9 May 1978, the FSM was without service. On 10 May 1978, he enlisted in the New Mexico Army National Guard and as a Reserve of the Army. He was honorably discharged on 9 May 1981 by reason of expiration term of service. He was credited with 3 years of service.

5. The FSM's military records show he enlisted in the Texas Army National Guard and as a Reserve of the Army on 26 October 1981. He was honorably discharged on 24 April 1982 at his request. He received no service credit.

6. The FSM's military records show he enlisted in the Texas Army National Guard on 16 September 1982 and was honorably released on 7 January 1983 to complete an immediate reenlistment in other state or the United States Army Reserve (USAR). He received no service credit.

7. The FSM's military records show he enlisted in the California Army National Guard 8 January 1983 and was honorably released on 7 June 1983 to enlist in the USAR. He served in a USAR Troop Program Unit until 15 November 1983 and was credited with 1 year of service credit for retired pay purposes.

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8. On 16 November 1983, the FSM again reverted to the Texas Army National Guard. Records show that he was married on 20 December 1983. On 15 September 1986, he was credited with 3 years of service credit for retired pay purposes, bringing his total service credit for retired pay purposes to 20 years, 8 months, and 22 days and qualifying him for issuance of a "20-year letter." All Reserve component Soldiers who complete the required years of service to become eligible for retired pay at age 60 receive a "20-year letter" as their written notification of that eligibility. Eligible Soldiers typically receive the "20-year letter" notification during the year following the qualifying retirement year. Normally the letter is issued 45-60 days after the retirement year ending date.

9. The FSM continued to serve in the Texas Army National Guard until he died of a heart attack on 9 November 1988. His National Guard Retirement Points History Statement shows that he had completed an additional 2 years, 1 month, and 23 days for a grand total service credit for retired pay purposes of 22 years, 10 months, and 15 days of qualifying service for a non-Regular retirement.

10. Due to an administrative oversight, the FSM's "20-year letter" was issued on 14 January 2003.

11. Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

12. Public Law 95-397, The Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978 and subsequently modified, is the only Reserve program that permits members to leave a percentage of their future retired pay as a monthly annuity to their beneficiaries. Once members are notified that they qualify for Reserve retired pay, except for not yet being age 60, they are eligible for RCSBP. They may elect this coverage during a 90-day period beginning the day they receive their packet for "Participation in the Reserve Component Survivor Benefit Plan" regardless of military status, age, or health. Three options are available:

         a. Option A - Under this option, the member declines to make an election for or against RCSBP coverage until reaching age 60. Consequently, there would be no protection in the years between becoming retirement-eligible and attaining age 60. Also, coverage for the time beyond age 60 would require the retiree’s separate election upon becoming entitled to retired pay. At that time, the provisions of the standard RCSBP law would apply. Under Option A, the survivor will never receive any RCSBP benefits if the retired member dies before age 60. This option was changed on 1 January 2001 to require written spousal concurrence in order to elect this option.

         b. Option B - Under this option, a member can guarantee the survivor an annuity starting on the date the retiree would have attained age 60 if the retiree dies before age 60. If death is after age 60, the annuity begins the day after the date of death. This option was changed on 1 January 2001 to require written spousal concurrence in order to elect this option as "spouse only" or "spouse and children" beneficiaries.

         c. Option C - This option guarantees the survivor will receive an RCSBP annuity immediately upon the death of the retired Reserve member, even if death occurs before age 60. This option was changed on 1 January 2001 to require written spousal concurrence in order to elect this option at less than the maximum level for "spouse only" or "spouse and children."

13. Title 10, U.S. Code, sections 1448(f)(1)(A) and (B) state the Secretary concerned shall pay an annuity to the surviving spouse of a person eligible to provide a reserve-component annuity and who dies before being issued his "20-year letter" or who dies within the 90-day election period beginning on the date he receives notification provided he had not made an election to forego participation in the plan.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record shows that the applicant qualified for issuance of a "20-year letter" on 15 September 1986. For reasons unknown, the Texas Army National Guard did not issue the letter. The FSM died on 9 November 1988 with a total of 22 years, 10 months, and 15 days of qualifying service for a non-Regular, Reserve-component retirement. He was not issued a "20-year letter" during his lifetime.

2. Because the FSM's "20-year letter" was not issued, the applicant was never able to exercise her election options. Public law states that the Secretary concerned shall pay an annuity to the surviving spouse of a person who is eligible to provide a RCSBP annuity and who dies before being notified that he has completed the years of service required for eligibility for Reserve-component retired pay.

3. The applicant, through no fault of her own, has suffered financial harm due to an administrative oversight. Had the FSM been issued his "20-year letter" in a timely manner, he and the applicant would have been able to elect to participate in the RCSBP, the only Reserve program that lets a Soldier leave a percentage of future retired pay as a monthly annuity to beneficiaries. Had the applicant and the FSM elected Option C, the applicant would have received an RCSBP annuity immediately upon the death of the FSM.

BOARD VOTE:

__mkp___ __alr___ __wdp___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a. showing that the FSM was eligible to receive his "20-year letter" on 15 September 1986 and was entitled to Reserve retired benefits at age 60;

         b. showing that the FSM's "20-year letter" was issued to him on 1 November 1988;

c. showing that the FSM died on 9 November 1988 before he or the applicant was able to make an election to participate or decline to participate in the RCSBP program;

d. showing that the applicant is the FSM's surviving spouse and is entitled to be paid an RCSBP annuity in accordance with Title 10, U.S. Code, sections 1448(f)(1)(A) and (B);

         e. showing that the applicant made application for the RCSBP under Option C on 10 November 1988; and by

f. paying to the applicant an RCSBP annuity predicated on the full base amount under Option C commencing on 10 November 1988, the day following the FSM's death.




                           Margaret K. Patterson
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089159
SUFFIX
RECON
DATE BOARDED	20040115
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	137.0100
2.
3.
4.
5.
6.