IN THE CASE OF:	

		BOARD DATE:			2 December 2008

		DOCKET NUMBER:	AR20080012719


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 that the entire process was started before the FSM passed away on 4 March 2004, but the FSM was unable to obtain the necessary retirement point history in adequate time.  She states that it took the California (CA) Army National Guard (ARNG) over 2 1/2 years to reconstruct the FSM's military retirement point history.  She continues to state that the process was started in October 2003 prior to the FSM's death; the retirement point history was returned completed on 24 July 2006, 2 1/2 years after the FSM's death.  She states that she filed everything in August 2006 with Human Resources Command.  It was then resubmitted by her Congressional representative in August 2007 and again by her Senate representative.

3.  The applicant provides copies of her marriage certificate and the FSM's death certificate in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM’s military service records show that he enlisted in the Regular Army and entered active duty on 5 February 1952.  He completed basic training and advanced individual training and was awarded the military occupational specialty of infantryman.

3.  The FSM’s DD Form 4 (Enlistment Record – United States) shows the applicant’s date of birth as 13 August 1934.

4.  The FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows that he was honorably separated from active duty on 4 February 1955 and transferred to the U.S. Army Reserve California Military District to complete 8 years' service under the Universal Military Training and Service Act.  His DD Form 214 shows that he served a total of 3 years of creditable active military service during this period.  The highest rank he achieved was private first class (temporary)/pay grade E-3.

5.  The FSM’s military service records show that he was assigned to the U.S. Army Reserve in enlisted service not on active duty from 5 February 1955 through 15 July 1956.

6.  The FSM’s military service records show that he was assigned to the ARNG in enlisted service not on active duty from 16 July 1956 through 20 July 1962.  The FSM's military service records also show that he participated in annual training with the ARNG for 15 days in 1957, 15 days in 1958, 15 days in 1959, 15 days in 1960, 15 days in 1961, and 15 days in 1962.

7.  The FSM’s military service records show that he applied for appointment and Federal recognition as a commissioned officer of the CAARNG.  6AA Form 53 (Request for Personnel Security Action) dated 7 December 1961 shows the FSM held the rank of sergeant first class/pay grade E-7 at the time of application.

8.  The FSM’s military service records show that he was assigned to the CAARNG from 21 July 1962 through 24 December 1973.

9.  CAARNG Special Orders 251 dated 20 December 1973 show that the FSM was transferred to the Retired Reserve effective 25 December 1973.

10.  Holy Trinity Church, San Pedro, California, marriage certificate dated 20 November 1982, shows that the applicant married the FSM on that date.

11.  The FSM reached age 60 on 13 August 1994.

12.  City of Long Beach, State of California, Certificate of Death dated 23 March 2004 shows that the FSM was pronounced dead on 4 March 2004.  This certificate shows the FSM’s date of birth as 13 August 1934 and age at death as 69 years old.  This certificate also shows that the FSM was survived by his spouse.

13.  U.S. Army Human Resources Command letter dated 8 February 2007 informed the applicant's Congressional representative that the FSM did not attain 20 qualifying years of service according to the Human Resources Command records and was therefore not enrolled in the RCSBP.  This letter also informed the applicant's Congressional representative that the applicant was not entitled to a monthly annuity based on the FSM's military service.

14.  ARNG Retirement Points History Statement dated 30 August 2007 shows that the FSM completed 20 years, 10 months, and 22 days of qualifying creditable service for retired pay as of 25 December 1973.  This statement also shows that the FSM did not receive a notice of eligibility for retired pay at age 60.

15.  U.S. Army Human Resources Command letter dated 12 September 2007 informed the applicant's Senate representative that the CAARNG provided a statement of the FSM's military service dated 30 August 2007 which reflected that the FSM attained 20 years of qualifying service toward retirement at age 60. This letter also stated that it appeared that the applicant was covered under the RCSBP.  This letter advised the applicant's Senate representative that upon receipt of the completed RCSBP forms, the Human Resources Command would review the packet to ensure the applicant's eligibility for the annuity and submit the application to the Defense Finance and Accounting Service (DFAS) for payment.  The letter further stated that payment would be paid from the date of the FSM's death.

16.  U.S. Army Human Resources Command letter dated 13 February 2008 informed the applicant's Senate representative that the CAARNG provided a statement of the FSM's military service dated 30 August 2007 which reflected that the FSM attained 20 years of qualifying service toward retirement at age 60. This letter also stated that the FSM never had the opportunity to make an election for survivor benefit coverage or to apply for retired pay after the Human Resources Command's receipt of the FSM's corrected retirement points statement from the CAARNG.  This letter advised the applicant's Senate representative that based on this information, the applicant was not entitled to a monthly annuity based on the FSM's military service.

16.  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 and has performed at least 20 years of qualifying service.

17.  The Uniformed Services Contingency Option Act (USCOA) of 1953 was the first law to permit military members to receive reduced retired pay during their lifetime in return for ensuring that their widows and eligible children would receive an annuity after their death.  Public Law 87-381 of 1961, replaced the provisions of the USCOA with the Retired Serviceman’s Family Protection Plan (RSFPP).

18.  Public Law 92-425, enacted 21 September 1972, terminated the RSFPP and created the Survivor Benefit Plan (SBP).  Under SBP, each member entitled to retired or retainer pay with eligible dependents is entitled to participate in the program.

19.  Public Law 95-397, enacted 30 September 1978, extended coverage under the SBP to members of Reserve Components who would be eligible for Reserve (Non-Regular Service) retired pay except for being under 60 years of age.  Under the SBP program, retired members are required to pay monthly premiums in the form of a deduction from their retired pay.  In general, these premiums are deducted throughout a member’s lifetime unless the retiree terminates or withdraws from annuity coverage, or during any period in which the member does not have an eligible beneficiary.  Eligible members were offered the following SBP options:  Option A deferred an election until the member's application for retired pay at age 60; Option B elected to provide an annuity beginning on the member's 60th birthday if he or she died before that date, or on the day after the member's death if he or she died after his or her 60th birthday; Option C elected to provide an immediate annuity beginning on the day after the date of the member's death, whether before or after age 60.

20.  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 applicant's request for entitlement to RCSBP coverage based on the FSM's eligibility for retired pay at age 60 was carefully considered and determined to have merit.

2.  The FSM reached age 60 on 13 August 1994 and was pronounced dead on 4 March 2004.

3.  Public Law 95-397 extended coverage under the SBP to members of Reserve Components who would be eligible for Reserve (Non-Regular Service) retired pay except for being under 60 years of age with an open enrollment period of 1 October 1978 through 31 March 1980.  Under this law, if the FSM had received notification of eligibility for retired pay at age 60, he was eligible to enroll in the RCSBP and defer an election until his application for retired pay at age 60; elect to provide an annuity beginning on his 60th birthday if he died before that date, or on the day after his death if he died after his 60th birthday; or elect to provide an immediate annuity beginning on the day after the date of his death, whether before or after age 60.

4.  ARNG Retirement Points History Statement dated 30 August 2007 shows that the FSM completed 20 years, 10 months, and 22 days of qualifying creditable service for retired pay as of 25 December 1973 and that the FSM did not receive a notice of eligibility for retired pay at age 60.

5.  U.S. Army Human Resources Command letter dated 13 February 2008 states that the CAARNG provided a statement of the FSM's military service dated 30 August 2007 which reflected that the FSM attained 20 years of qualifying service toward retirement at age 60.  This letter also stated that the FSM never had the opportunity to make an election for survivor benefit coverage or to apply for retired pay after the Human Resources Command's receipt of the FSM's corrected retirement points statement from the CAARNG.

6.  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.  Under this law, the FSM's surviving spouse is eligible for RCSBP coverage based on verification of the FSM's qualifying service.

7.  Therefore, it is now appropriate to issue such notification for the FSM.  Upon issuance, and under the provisions of Title 10, U.S. Code, section 1448(f)(1)(A), the FSM's surviving spouse would be eligible for RCSBP coverage based on verification of the FSM's qualifying service beginning on the day after his death.

8.  The applicant should be advised that the DFAS will audit the RCSBP premium payment terms and collect any RCSBP premiums due.

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 on 30 August 2007;

	b.  showing the applicant's entitlement to RCSBP under the provisions of Title 10, U.S. Code, section 1448(f)(1)(A), to receive an annuity beginning on the day after the FSM's death;

	c.  directing that the applicant be paid an annuity retroactive to 5 March 2004; and

	d.  advising the applicant that the DFAS will audit the RCSBP premium payment terms and collect any RCSBP premiums due.



      ___________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)                                         AR20080012719





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ABCMR Record of Proceedings (cont)                                         AR20080012719



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