IN THE CASE OF:	  

	BOARD DATE:      
	DOCKET NUMBER:  AR20080003827 


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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he was placed on the retired list and to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.

2.  The applicant states that her spouse completed 21 years and 11 months of qualifying service for retired pay; however, he never received retired pay.  Her spouse, she adds, was ill and apparently just failed to follow up on his request due to his illness.

3.  The applicant provides those documents listed as enclosures on a "Cover Letter of Explanation" she wrote to the Retirements Section, Army Human Resources Command, St. Louis, Missouri on 9 January 2008.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows that the FSM was inducted into the Army of the United States on 17 January 1956.  He was honorably released from active duty on 22 November 1957 and was transferred to the Army Reserve.  The FSM enlisted in the Regular Army on 19 September 1963 and remained on active duty until he was honorably discharged on 22 June 1973.  The FSM enlisted in the Florida 

Army National Guard (FLARNG) on 13 November 1981 and was honorably discharged from the FLARNG on 8 December 1987. 

2.  On 25 January 1986, the Unit Administrator, 146th Signal Battalion, requested issuance of a 20-year letter for the FSM.  In his request, he indicated the FSM would complete 20 years of service on or about 11 February 1986 and he intended to terminate his enlistment immediately upon receipt of his 20-year letter.

3.  On 18 March 1986, the Chief, Military Personnel, The Florida Adjutant General’s office, replied to the request.  In his reply he stated, in effect, the FSM had only 15 years of creditable service towards retirement and he had only 4 years of the required 8 years in the Reserve component.  At that point, the FSM still needed 5 years for the 20 years creditable towards retirement.

4.  As already indicated above, the FSM was honorably discharged from the FLARNG on 8 December 1987.  At the time of his discharge, he had completed 21 years and 11 months of total service for pay purposes.

5.  The FSM and the applicant were married on 10 December 1964.

6.  The FSM’s NGB Form 22, National Guard Bureau Report of Separation and Record of Service, and the FSM’s Florida Certificate of Death both show he was born on 21 September 1937.  The FSM reached the age of 60 on 21 September 1997.  The FSM’s Florida Certificate of Death shows he died on 6 January 2007 at 69 years of age.

7.  On 9 January 2008, the applicant applied to the Army Human Resources Command, Retirements and Annuity Section, to have her deceased husband placed on the retired list and to have his records corrected to show he had elected to participate in the SBP for spouse coverage.

8.  There is no evidence that the Army Human Resources Command, Retirements and Annuity Section, replied to her request other than to provide her a “post-it” note with instructions to apply to this Board for relief.

9.  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 occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

10.  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.

11.  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 evidence shows that the FSM had insufficient creditable service for retirement purposes.

2.  On 25 January 1986, the Unit Administrator, 146th Signal Battalion, requested issuance of a 20-year letter for the FSM.  On 18 March 1986, the Chief, Military Personnel, The Florida Adjutant General’s office, replied to the request.  In his reply he stated, in effect, the FSM had only 15 years creditable service towards retirement and he had only 4 years of the required 8 years in the Reserve Component.  At that point, the FSM still needed 5 years for the 20 years creditable towards retirement.  The FSM had insufficient creditable service for retirement, so he was ineligible for issuance of a 20-year letter and he was also not entitled to receive retirement pay.

3.  The evidence does show that the FSM had accumulated 21 years and 11 months for pay purposes with his combined service in the Army of the United States, the Army Reserve, the Regular Army, and the Florida Army National Guard; however, what he lacked was creditable service for retirement purposes, which is not the same thing under the relevant law as creditable service for pay purposes.

4.  Regrettably, there is insufficient evidence that would warrant granting the relief the applicant has requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




       _    ___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)                                         AR20080003827



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ABCMR Record of Proceedings (cont)                                         AR20080003827



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