RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060000416


      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 L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

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 applied for
retired pay.

2.  The applicant states the FSM was eligible to draw retired pay in
January 2005.  He was physically disabled for years.  Due to his illness,
he was unable to file for his retired pay.

3.  The applicant provides a 14 November 2005 letter from the FSM’s doctor;
a    24 August 2005 letter from the Transition and Separations Branch, U.
S. Army Human Resources Command – St. Louis (USAHRC-STL); the FSM’s
Chronological Statement of Retirement Points; the FSM’s death certificate;
and an article from the December 1985 issue of the 102d Army Reserve
Command’s newsletter.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 14 January 1945.  After having had prior service in
the Regular Army, he was transferred to the U. S. Army Reserve on 11
October 1973.  He and the applicant married on 23 February 1979.

2.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-
year letter) was dated 2 February 1994.  The 24 August 2005 letter from the
Transition and Separations Branch, USAHRC-STL indicated that its system
showed the FSM elected to participate in the Reserve Component Survivor
Benefit Plan (RCSBP), option B.

3.  The applicant provided a 14 November 2005 letter from the FSM’s doctor.
 The doctor stated the applicant (who died from respiratory failure as a
consequence of emphysema) suffered from chronic obstructive pulmonary
disease, was diagnosed with lung cancer just prior to his death, and was
breathing with the help of tubes and oxygen tanks well before the time that
he was eligible to apply for retired pay.

4.  On 9 August 2005, the FSM died.

5.  The Transition and Separations Branch, USAHRC-STL stated in its 24
August 2005 letter that the FSM had not applied for retired pay.  The
letter advised the applicant that she was ineligible for the Survivor
Benefit Plan annuity based on the FSM’s failure to apply for retired pay.

6.  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 60th 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.

7.  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 and has performed at least 20 years of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM failed to apply for retired pay in
a timely manner.  The applicant provided a letter from the FSM’s doctor
indicating the FSM may have been physically incapable of applying for
retired pay.  Nevertheless, the FSM honorably served the Army for over 20
years and earned his retired pay.  His spouse, the applicant, helped him
earn his retired pay.

2.  It would be equitable to correct the records to show the FSM applied
for retired pay.  If the FSM elected spouse RCSBP coverage, this would
allow his RCSBP election to automatically roll into an SBP election.
Provided otherwise still eligible, the applicant could then apply to the
Defense Finance and Accounting Service for the SBP annuity.

BOARD VOTE:

__pms___  __lmd___  __rdg___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing that the FSM applied for retired pay on 1 December 2004, naming the

applicant as his beneficiary for unpaid retired pay; and that he 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 14
January 2005.




                                  __Paul M. Smith_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000416                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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