RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 January 2008
DOCKET NUMBER: AR20070009478
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. Frank C. Jones II
Chairperson
Ms. LaVerne M. Douglas
Member
Mr. Michael J. Flynn
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 non-regular retirement and that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
2. The applicant states that the FSM failed to apply for retirement benefits and now asks that she be provided these benefits based on compassion.
3. The applicant provides copies of the FSM's Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), discharge orders, and death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 12 June 1936. He enlisted in the United States Army Reserve (USAR) on 10 November 1958 and completed his initial active duty for training on 10 July 1959. He was awarded military occupational specialty 941.10 (Cook). He served through a series of enlistments and attained the rank of sergeant first class, pay grade E7.
2. On 31 August 1979, the personnel officer, First United States Army, Fort George G. Meade, Maryland, issued a letter notifying the FSM of his eligibility for retired pay at age 60. This letter indicates the attachment of two enclosures, one for Servicemembers Group Life Insurance (SGLI), and another for Survivor Benefit Plan (SBP).
3. On 8 December 1979, the FSM was recommended for retention in the USAR.
4. Orders Number 226-5, Headquarters, First United States Army, dated
24 December 1980, discharged the FSM from the USAR Ready. His characterization of service was honorable.
5. On 6 December 2001, the FSM became eligible for retired pay but never made application.
6. The FSM died on 10 May 2006 at age 69 years, 5 months, and 5 days.
7. 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.
7. 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 members 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
8. Before the law was amended as noted below, a member must have made the election within 90 days of receiving the 20-year letter or else wait until he/she applied for retired pay and elected to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A.
9. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C.
DISCUSSION AND CONCLUSIONS:
1. The FSM was fully qualified for a retirement but did not make application to receive it. As a matter of equity his records should be corrected to show that he did make such an application and that his widow be provided the benefits that may be derived from his retirement.
2. There is no evidence showing that the FSM elected to participate in the SBP at the time of receiving his 20-year letter, or anytime thereafter. Since the FSM did not "earn" SBP in the same sense that he "earned" his military retirement, the applicant's request for SBP should not be granted.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
_FCJ____ __MJF__ __LMD __ 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by revoking the FSM's discharge orders dated 24 December 1980 and showing that he timely requested and was transferred to the Retired Reserve.
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 enrollment in the SBP.
___ Frank C. Jones II_____
CHAIRPERSON
INDEX
CASE ID
AR20070009478
SUFFIX
RECON
DATE BOARDED
2080108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
. . .
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.
136
2.
137
3.
4.
5.
6.
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