IN THE CASE OF:	  

		BOARD DATE:	        9 December 2008

		DOCKET NUMBER:  AR20080011865 


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, the widow of a former service member (FSM), requests, in effect, entitlement to Reserve Component Survivor Benefit Plan (RCSBP) coverage.

2.  The applicant states, in effect, that the records at the Defense Finance and Accounting Service (DFAS) fail to show the FSM completed 36 years of service.  She contends that the FSM more than adequately met the requirements for retirement benefits; however, due to an illness he possibly did not make his RCSBP election.

3.  The applicant provides a letter, dated 16 March 2007, from DFAS; an Honorable Discharge certificate; a death certificate; and a certificate of appointment of administrator(s).

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 22 January 1932.  

2.  The FSM's Chronological Statement of Retirement Points shows he enlisted in the U.S. Army Reserve (USAR) on 21 March 1969.  After having a break in service from 21 March 1975 to 20 March 1981, he enlisted in the USAR on       21 March 1981.  After having a break in service from 21 March 1983 to 20 March 1988, he enlisted in the USAR on 21 March 1988.  This statement shows the FSM had 6 years of qualifying service for retirement purposes.

3.  Other documents contained in the available records show the FSM was inducted on 8 December 1955 and honorably released from active duty on 
23 November 1957 and transferred to the USAR.  He served in the USAR from 24 November 1957 to 11 May 1983.  He enlisted in the Army National Guard on 12 May 1983.  On 21 January 1992, he was honorably discharged from the Army National Guard and as a Reserve of the Army in the rank and grade of Sergeant First Class, E-7.  

4.  An undated letter from Headquarters and Headquarters Company, 464th Engineer Battalion (Combat) (C), Schenectady, New York to the FSM states, in pertinent part, that effective 22 November 1967 the FSM was awarded the first award of the Armed Forces Reserve Medal for completion of "ten (10) years exemplary behavior, efficiency, and fidelity with a minimum of 50 retirement points per year during this period."  This letter also states that effective 
22 November 1977 the FSM was awarded the second award of the Armed Forces Reserve Medal for completion of an additional "ten (10) years exemplary behavior, efficiency, and fidelity with a minimum of 50 retirement points per year during this period."       

5.  The FSM turned age 60 in January 1992. 

6.  The FSM died on 9 September 2005.

7.  The applicant provided a letter, dated 16 March 2007, from DFAS which states, in pertinent part, that "we find no record of him in our data base.  To qualify for benefits from our Agency he would had to have served in and retired from the Armed Forces of the United States."

8.  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.  

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.  
  
10.  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. 

11.  Title 10, U.S. Code, section 1448(f)(1)(A) states that the Secretary concerned shall pay an RCSBP annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies before being notified that he or she has completed the years of service required for eligibility for reserve component retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's Chronological Statement of Retirement Points shows he completed only 6 years of qualifying service for a Reserve retirement.  However, other documents in his records, combined with the letter awarding him two awards of the Armed Forces Reserve Medal, are accepted as sufficient to show he completed 20 years of qualifying service for retired pay.

2.  It appears the FSM never received a notice of eligibility for retired pay at age 60.  It would be appropriate at this time to issue such notification for the FSM.  Upon issuance, and under Title 10, U.S. Code, section 1448(f)(1)(A), the FSM's surviving spouse (the applicant) would be eligible for RCSBP coverage based on verification of the FSM's qualifying service beginning on the day after his death.

3.  In addition, the U. S. Army Human Resources Command - St. Louis should review the FSM's records and update his Chronological Statement of Retirement Points.  An updated retirement points statement is required so DFAS will be able to determine the base amount upon which the RCSBP will be paid.

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 pertaining to the individual concerned be corrected by:

   a.  issuing for the FSM a notice of eligibility for retired pay at age 60;
   
   b.  having the U. S. Army Human Resources Command, St. Louis, MO, review the FSM's records and update his Chronological Statement of Retirement Points accordingly; 

   c.  showing the applicant's entitlement to the RCSBP under the provisions of Title 10, U.S. Code, section 1448(f)(1)(A); and
   
   d.  directing that the applicant be paid an annuity based on the FSM's entitlement to participate in the RCSBP retroactive to 10 September 2005, the day after his death and based upon his updated Chronological Statement of Retirement Points.




      _______ XXX_   _______   ___
               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)                                         AR20080011865





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011865



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1