RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 June 2008
	DOCKET NUMBER:  AR20080002751 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 she be granted a Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).  

2.  The applicant states, in effect, that she and the FSM were married on 19 November 1960, and at the time the FSM was serving in the Army National Guard (ARNG).  She claims the FSM retired from his civilian job at the age of 55, in 1990, due to illness when he was diagnosed with liver disease.  She claims by the time the FSM was required to submit his paperwork for military retired pay, he was suffering from dementia, which was a side effect of the liver disease, and was not capable of filling out the forms necessary for his retirement.  She states that she is now in need of the SBP annuity because her son suddenly died last year and left no insurance behind.  This caused her to pay for his funeral and burial, which has caused her a severe hardship.  She further states that she is very ill and is suffering from lung disease and diabetes, and her medical expenses and prescriptions are very high, which makes it difficult for her to get by.  She concludes by indicating that she and the FSM were married for 40 years and that the FSM served his country honorably during this period.  She asks that her request for SBP benefits, which her husband paid for, be granted.  

3.  The applicant provides the following documents in support of her application:  Self-Authored Letter; FSM Medical Diagnosis; ARNG Separation Document (NGB Form 22); FSM Retired Reserve Orders; FSM Death Certificate; and United States Army Human Resources Command, St. Louis, Missouri 
(HRC-St. Louis) Letter, dated 26 April 2001.   

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows that he served in the ARNG from 14 September 1953 through 17 March 1992, at which time he was honorably discharged from the ARNG and transferred to the United States Army Reserve (USAR) Retired Reserve.  The NGB Form 22 he was issued at the time shows he held the rank of staff sergeant and that he had completed a total of 38 years, 4 months, and 
4 days of military service.  This document also confirms the FSM's date of birth was 14 April 1935.  


2.  The FSM's Official Military Personnel File (OMPF) contains an ARNG Annual Statement, dated 18 September 1992, which shows that the applicant earned a total of 3620 retirement points and completed 38 years, 6 months, and 4 days of creditable service for retired pay at age 60. 

3.  The FSM's OMPF also contains a SBP Election Certificate (DD Form 1883, dated 5 September 1979, in which the FSM elected full "Spouse Only" coverage under Option C (Immediate Coverage).  This form also lists the applicant as his wife and confirms the date of the FSM's marriage to the applicant was 
19 November 1960.  The FSM's OMPF is void of an application for retired pay at age 60 packet.  

4.  On 11 February 2001, the FSM died at the age of 65.  

5.  On 26 April 2001, the Chief, Transition and Separations Branch, 
HRC-St. Louis notified a representative for the applicant that the FSM had made a Reserve Component (RC) SBP election for Option C (Immediate Coverage); however, he did not apply for retired pay and was discharged from the service on his 60th birthday.  As a result, there was no SBP annuity coverage or entitlement to the applicant.  He further informed the applicant's representative that her only recourse was to apply to this Board for relief.  

6.  The applicant provides a medical treatment record, dated 13 August 1990, which indicates the FSM was diagnosed with and suffered from Hyperlipemia and Liver Disease as of that date.  

7.  Title 10 of the United States Code, Section 12731 provides the age and service requirements for non-regular retirement at age 60.  It states, in pertinent part, that a person is entitled, upon application, to non-regular retired pay if the person is at least 60 years of age, and has performed at least 20 years of qualifying service for non-regular retirement.  It further states that application for retired pay must be made to the Secretary of the Military Department having jurisdiction.  

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. 


9.  The following three RCSBP options are available Public Law 95-397:  
(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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

10.  Title 10 of the United States Code, section 11452(a)(1)(B), provides the legal authority for reduction in retired pay for RCSBP participants.  It states, in pertinent part, that in the case of a participant in the RCSBP who provided coverage for an eligible beneficiary during a period before becoming entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay.  

DISCUSSION AND CONCLUSIONS:

1.  The FSM's record shows he failed to submit an application for retired pay at age 60, and as a result was discharged from the USAR upon attaining age 60.  Although this discharge action and the subsequent denial of a SBP annuity to the applicant by HRC-St. Louis were proper under the existing law and regulation, there are equity considerations in this case that must be addressed.  

2.  The evidence of record confirms the FSM properly elected full "Spouse Only" RCSBP coverage under Option C (Immediate Coverage) in accordance with the applicable law and regulation in 1979.  As a result, his intent to provide a SBP annuity for the applicant upon his death was clear.  Further, given this clear election to protect his wife after his death, and based on his completion of more than 38 years of qualifying service for non-regular retirement purposes, it is not reasonable to presume he would have failed to apply for retired pay at age 60 had his ability to complete the application packet not been impaired by his medical condition.  

3.  In view of the facts of this case, it would be appropriate and serve the interest of justice and equity to correct the FSM's record to show that he completed the necessary application for retired pay at age 60, which included a SBP election for full spouse only coverage, and that this application was approved; and by voiding his 14 April 1995 discharge from the USAR and to instead show he was placed on the Retired List and became entitled to retired pay on that same date.
4.  Further, it would be appropriate to provide the applicant all retired pay, minus SBP premiums, due the FSM from 14 November 1995 through 11 February 2001, the date of the FSM's death; and by providing the applicant the SBP annuity due since the date of the FSM's death.

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 individual concerned be corrected by:

	a.  showing he completed the necessary application for retired pay at age 60, which included a SBP election for full spouse only coverage, and that this application was approved by proper authority;

	b. voiding discharge from the USAR action as referenced in the 26 April 2001 HRC-St. Louis memo as appropriate and instead showing he was placed on the Retired List on that same date, and became entitled to retired pay on that same date; and 

	c.  providing the applicant all retired pay due the FSM, minus SBP premiums, from 14 November 1995, the date he reached age 60 through 
11 February 2001, the date of his death, and the SBP annuity payments due since 11 February 2001, the date of the FSM's death.




      __________x____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002751



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508