RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012089 


	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.


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	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 the Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states, in effect, that they were misinformed by the FSM’s unit personnel regarding retirement benefits and her request for his pension was denied.  The FSM and the applicant were required to attend a retirement meeting at his Long Beach, California unit at which time he was instructed to file for retirement benefits at age 65 because he was in the Reserves.  The FSM was told he could not use any benefits or receive his retirement benefits until after he filed for retired pay at age 65.  The applicant states that the only benefits that were allowed were commissary privileges (12 visits per year).  The FSM was instructed to present all of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) at the time he applied for retirement benefits at age 65.

3.  The applicant provides a copy of the FSM’s death certificate; a letter of support from a retired warrant officer; an affidavit to amend the FSM’s records; the FSM’s DD Form 214; a letter from the Chief, Transition and Separations Branch, U.S. Army Reserve Personnel Command, St. Louis, Missouri; the FSM’s notification of eligibility to receive retired pay at age 60 (20-Year Letter); the FSM’s DD Form 1883 (SBP Election Certificate); the FSM’s retired military identification card; the FSM’s Chronological Statement of Retirement Points; and the applicant’s letter to a senator.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 21 July 1943.  He enlisted in the U.S. Army Reserve on 25 September 1964 and continued to serve in the U.S. Army Reserve through reenlistments.  He was promoted to sergeant first class on 19 February 1972.  He was discharged from the U.S. Army Reserve on 20 February 1976 for enlistment in the Army National Guard.  

2.  The FSM enlisted in the California Army National Guard (CAARNG) on 21 February 1976.  He and the applicant were married on 4 December 1983.  

3.  The FSM's 20-Year Letter is dated 8 April 1991.  On 4 May 1991, he completed a DD Form 1883 and enrolled in the RCSBP for spouse and children coverage, full base amount, option C.

4.  The applicant was discharged from the CAARNG on 10 January 1994 and was transferred to the Retired Reserve on the following date.  

5.  The FSM’s Chronological Statement of Retirement Points, dated 6 June 2002, shows he completed 26 years, 3 months, and 17 days of qualifying service for retirement.  

6.  The FSM reached age 60 on 21 July 2003.  

7.  The FSM died on 22 July 2005.  The death certificate shows he was married to the applicant at the time of his death.

8.  In a letter, dated 6 October 2005, the Chief, Transition and Separations Branch, U.S. Army Reserve Personnel Command, St. Louis, Missouri, informed the applicant that she was ineligible for the Survivor Benefit annuity because the FSM did not apply for retired pay when he attained age 60 on 7 July 2003.

9.  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.  

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 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.

11.  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.  The evidence of record shows the FSM received his notification of eligibility for retired pay at age 60, dated 8 April 1991.  He was married to the applicant at that time and elected to enroll in the RCSBP for spouse and children coverage, full base amount, option C.  
2.  The evidence of record shows the FSM failed to apply for retired pay in a timely manner.  However, he honorably served the Army for over 20 years and earned his retired pay.  His spouse, the applicant, helped him earn his retired pay.

3.  It appears the FSM was given erroneous advice on when to apply for retirement benefits.  Therefore, it would be equitable to amend the FSM's records to show he applied for retired pay to be effective 21 July 2003.

BOARD VOTE:

x______  x______ x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 the FSM applied for retired pay on 1 June 2003, naming the applicant as his beneficiary for unpaid retired pay, and returned the application to the appropriate office in a timely manner where it was processed to be effective upon his reaching age 60 on 21 July 2003.

2.  The Board also recommends that the applicant be advised that DFAS will be instructed to collect any RCSBP costs due.

3.  The Board further recommends that the applicant be paid the SBP annuity effective, 22 July 2005, the date of the FSM's death.




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          CHAIRPERSON




INDEX

CASE ID
AR20060012089
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070327
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
137.0000
2.

3.

4.

5.

6.