IN THE CASE OF:	 

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20070017517 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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 reflect the Survivor Benefit Plan (SBP) annuity amount was based on the rank of Major (MAJ), the highest grade he held, vice Master Sergeant (MSG) as is currently the case.  

2.  The applicant states, in effect, that her husband (FSM) initially served in an enlisted status in the Army National Guard (ARNG) from 11 March 1967 through 10 March 1976, at which time he was discharged from the ARNG in order to accept a commission.  She further indicates that he served in a commissioned officer status from 1976 through 1992, at which time he reverted to an enlisted status in the United States Army Reserve (USAR).  She states that while serving in the USAR, the FSM attained the rank of Major (MAJ) in 1990, and that this is the highest rank he held and satisfactorily served in during his military service.  

3.  The applicant also states that the FSM reverted to an enlisted status in 1992, and that at the time of his death on 21 January 2007, he was on active duty as a MSG undergoing processing through the Army Physical Disability Evaluation System (PDES).  She states that retirement officials at Human Resources Command-St. Louis (HRC-St. Louis) informed her that her SBP annuity should be based on the FSM's rank of MAJ, but that they are unable to issue orders to that effect and as a result, she is receiving her annuity based on his holding the rank of MSG.  

4.  The applicant provides the following documents in support of her application:  Separation Document (DD Form 214); Chronological Statement of Retirement Points (ARPC Form 249-2-E); Notification of Eligibility For Retired Pay at Age 60 (20 Year Letter); Clark County Nevada Marriage Certificate; Divorce Decree; State of Washington Certificate of Death; Report of Casualty (DD Form 1300); United States Army Human Resources Command, Orders A-08-620886, dated 
9 August 2006; Data for Payments of Retired Personnel (DD Form 2656); Survivor Benefit Plan Election Certificate (DD Form 1883); Applicant for Retired Pay Benefits (DD Form 108); Spouse Statement of Desired SBP Election Active Duty Death; SBP Beneficiary Worksheet; Active Duty Death Survivor Counseling 
Checklist; Spouse Options Fact Sheet; Annuitant Account Statements; 

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he initially entered the Army National Guard (ARNG) in an enlisted status on 11 March 1969.  He continuously served in this status until 10 March 1976, at which time he was discharged in order to be commissioned.  

2.  On 15 May 1976, the FSM was appointed a second lieutenant (2LT) in the United States Army Reserve (USAR), and was granted Federal Recognition in the ARNG.  

3.  On 4 March 1982, the FSM was discharged from the ARNG, in the rank of first lieutenant (1LT), and transferred to a Troop Program Unit (TPU) in the USAR.  

4.  On 12 May 1990, while serving in USAR, the FSM was promoted to Major (MAJ), which is the highest rank he satisfactorily held during his military service.  

5.  On 8 June 1992, a Headquarters, Fifth United States Army Memorandum, notified the FSM that he had been considered but not selected for retention in an officer status, and that he had to be removed from his unit within 90 days.  

6.  On 11 March 1993, the FSM reverted to an enlisted status in the USAR.  

7.  On 6 June 1997, the FSM and his first wife were divorced, and on 3 January 1998, the FSM married the applicant.  

8.  On 20 January 1999, while holding the rank of MAJ, the FSM completed a Survivor Benefit Plan Election Certificate (DD Form 1883).  Section II (Marital, Dependency, and Election Status) of the DD Form 1883 shows the FSM elected "Full Spouse and Children" coverage under Option C (Immediate Coverage).  The applicant was identified as the spouse beneficiary in Section III.  

9.  On 22 May 2006, as part of his application for retired pay at age 60, the FSM completed a Data for Payment of Retired Personnel (DD Form 2656), in which he elected “Spouse Only” SBP coverage at the full base amount.  

10.  HRC-St. Louis Orders A-08-620886, dated 9 August 2006, ordered the FSM to active duty on 1 August 2006, for the purpose of entering the PDES for disability processing.  On 21 January 2007, while serving as a MSG/E-8 on active duty, the FSM died at the age of 59. 

11.  A Reserve Personnel Accounting System (RPAS) statement on file in the FSM's record confirms he served in a commissioned officer active status in the ARNG and USAR from 1976 through 1993.  Although he served on active duty at different times during his RC service, there is no indication that any of the active duty he performed during this period was done as a member of the Active Component (AC).  The RPAS further shows he reverted to an enlisted status and continued to serve in the USAR through the date of his death and that he earned a total of 4382 creditable retirement points.  

12.  The applicant subsequently applied to receive the SBP annuity due based on the FSM's death, and ultimately received a SBP annuity based on an active duty computation based on the FSM's death as a MSG/E-8 on active duty.

13.  Titile10 of the United States Code, Section 1448 (d) (1) provides an annuity for a surviving spouse of a member who dies on active duty.  The provisions of 10 U.S.C. 1448(d) (1) (A) apply where the member dies after becoming eligible to receive retired pay.  Subsection (d) (1) (A) (ii) applies to those members "qualifying for retired pay except that the member has not applied for or been granted that pay".  

14.  10 U.S. C. 1451(c) (1) (A) (i) sets forth the calculation of the SBP annuity for those members covered by 10 U.S.C. 1448 (d) (1) (A) (i) and (iii).  In those instances, the annuity payable to the surviving spouse is calculated at 55% of what the member would have received had the member been granted a disability retirement under 10 U.S.C. 1201.  10 U.S.C. 1370 governs retired grade in these instances.  

15.  10 U.S.C. 1370 (a) (1) requires an officer to satisfactorily serve six months on active duty in the highest grade in order to retire in that grade.  Disability retirees are exempt from this provision, except as provided in 10 U.S.C. 1370 (a)(2)(A), which imposes a three year active duty service in grade requirements for officers retiring in a grade above MAJ.  10 U.S.C. 1201 will be retired in the highest temporary grade in which he served satisfactorily, as determined by the Secretary concerned.  Read together, 10 U.S. C. 1370 and 10 U.S. C. 1372 waive any active duty service requirement for officer's below the rank of LTC.  Hence, by way of example, had the FSM been on active duty and had sufficient service for a regular retirement, the applicant's annuity would be calculated as if he received a disability retirement in the grade of MAJ.  The same outcomes occurs under 10 U.S.C. 1448 (d)(1)(B) for member below the grade of LTC who are not eligible or otherwise qualified to receive retired pay but nonetheless die on active duty in the line of duty.

16.  10 U.S.C., Section 1451 (c) (3) governs calculation of the SBP annuity.  It states in pertinent part that in the case if members who entered the uniformed service prior to 8 September 1980, the annuity for purposes of section (c) (1) for a member described in 10 U.S. C. 1448 (d) (1) (A) (iii) is calculated based upon the grade held by the member at the time of his death, unless the member would have been retired in a higher grade under some other provisions of law.  

17.  10 U.S.C. 1406(b)(2) provides that non-regular retired pay is based upon the highest grade satisfactorily held by the member at any time in the armed forces as determined under 10 U.S.C. 1370 (d).

18.  10 U.S.C., Section 1370 provides the legal authority for establishing the retired grade for commissioned officers.  It states, in pertinent part, that a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.  It further states that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.  


19.  Public Law 107-107, enacted 28 December 2001, provided expanded benefits under the SBP for qualified survivors of eligible members who die in the line of duty.  These benefits are effective for a death on or after 10 September 2001.  A qualified death under the provisions of Title 10 of the Untied States Code, Section 1448(d), as amended by Public Law 107-107, is a death of a member on active duty who died in the line of duty or died not in the line of duty but was retirement eligible.  

20.  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.  Eligibility for RCSBP is based on completion of 20 qualifying years for 
non-regular retirement purposes.  

21.  10 of the U.S.C., section 12731 provides the age and service requirements for entitlement to non-regular retired pay.  It states, in pertinent part, that a member who has completed at least 20 years of qualifying service is eligible to receive retired pay at age 60 upon application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the SBP annuity she receives based on her husband's (FSM) death should be based on the grade MAJ/0-4 vice MSG/E-8 was carefully considered and found to have merit.   

2.  By law, computation of the SBP annuity of a member who dies on active duty will be computed as if the member had been retired under disability provisions of the law, which provide for retirement in the highest grade held.  

3.  In this case, the evidence of record confirms the FSM was on active duty and was eligible but had not yet been authorized to receive non-regular retired pay at the time of his death.  The FSM was fully eligible for retirement and submitted his application for retired pay at age 60 on 22 May 2006, which would have entitled him to retired pay after his birthday on 25 March 2007.  However, he died on 
21 January 2007, at the age of 59, approximately two months shy of his
60th birthday.  Therefore, the applicant should be receiving the SBP annuity based on the FSM's temporary grade of MAJ, which is the highest grade he held and in which he served satisfactorily in the Armed Forces.  


BOARD VOTE:

___X____  __X_____  __X____   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 FSM concerned be corrected by showing that the SBP annuity provided based on the FSM's death was computed under disability provisions of the law, and that the annuity authorized is based on the highest grade the FSM held, which was major; and by providing the applicant the SBP annuity in question based on the FSM's grade of major from the date of the FSM's death, which includes all back annuity payments due as a result. 




      __________X____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20070017517



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ABCMR Record of Proceedings (cont)                                         AR20070017517



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