RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20060003824


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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 military records of her
deceased spouse, a former service member (FSM), be corrected to show he
applied for retired pay upon reaching age 60 and that she be paid his
retroactive retired pay and Survivor Benefit Plan (SBP) annuity.

2.  The applicant states the Department of the Army had all the information
in its records and should have contacted the FSM at age 60 to file for
benefits due to him.

3.  The applicant provides a Retiree Status and Address Verification, dated
October 1988; the FSM’s notification of eligibility for retired pay at age
60 (his
20-year letter); a DD Form 1883 (Survivor Benefit Plan Election
Certificate), dated 4 September 1979; the FSM’s death certificate; two
marriage licenses and certificates; and a letter, dated 1 September 1983,
from the office of The Adjutant General, U.S. Army Reserve Components
Personnel and Administration Center, St. Louis, Missouri.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 28 September 1930.  He enlisted in the Army
National Guard on 2 December 1947 and was commissioned a Reserve officer on
15 April 1957 in the Army National Guard.  He and the applicant married on
25 November 1960.  His 20-year letter is dated 10 April 1975.  He was
transferred to the U.S. Army Reserve on 10 October 1975.

2.  On 4 September 1979, the FSM completed a DD Form 1883 and enrolled in
the RCSBP for spouse only coverage, full base amount, option C.

3.  The FSM was transferred to the Retired Reserve effective 27 October
1983 in the rank of lieutenant colonel.

4.  On 28 September 1990, the FSM reached age 60.

5.  On 16 March 2002, the FSM died of an acute coronary insufficiency.

6.  Records at the Defense Finance and Accounting Service (DFAS) and the
Transition and Separations Branch at the Human Resources Command – St.
Louis, Missouri, show the FSM did not apply for retired pay prior to his
death.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The
SBP provided that military members on active duty could elect to have their
retired pay reduced to provide for an annuity after death to surviving
dependents.

8.  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; and (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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  By law, receipt of retired pay, even though an entitlement, is only
paid upon application by the member.

2.  The FSM was a lieutenant colonel when he was transferred to the Retired
Reserve in October 1983.  He turned age 60 in September 1990, and the
evidence of record shows he failed to apply for retired pay.  He died in
March 2002.

3.  The applicant provides no evidence to show why the FSM failed to apply
for retired pay in the nearly 12 years after he became eligible to apply.
The FSM was a commissioned officer who should have known either how to
apply for retired pay or how to contact the correct office to obtain an
application.  In the absence of evidence to the contrary, it is presumed
the FSM had his own valid reasons for not applying for retired pay.

4.  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.

5.  While there is insufficient evidence to show that it would be equitable
to correct the FSM’s records to show he applied for retired pay prior to
turning age 60, it would be compassionate to correct his records to show he
applied for retired pay on 1 February 2001 (approximately one year prior to
his death) and elected the applicant as his beneficiary for unpaid retired
pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

CD____  __JP____  __RN____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  Board determined that the evidence presented was sufficient to warrant
a recommendation for partial relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by:

     a.  showing he applied for retired pay on 1 February 2001, naming the
applicant as his beneficiary for unpaid retired pay, and returning the
application to the appropriate office where it was processed in a timely
manner to be effective 1 March 2001;

     b.  advising the applicant that DFAS will be instructed to collect any
RCSBP and SBP costs due; and

     c.  showing that the applicant applied for survivor benefits in a
timely manner and that she be paid the SBP annuity effective 16 March 2002,
the date of the FSM’s death.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correcting the records to show he applied for retired pay any earlier than
1 February 2001.




                                  ___Carmen Duncan______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003824                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061024                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |137.0000                                |
|2.                      |128.1400                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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