IN THE CASE OF:	 

		BOARD DATE:	        12 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016816 


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 military records of her deceased spouse, a former service member (FSM), be corrected to show he applied for retired pay upon reaching age 60 and that she be paid his retroactive retired pay and Survivor Benefit Plan (SBP) annuity.

2.  The applicant states that her late husband was in receipt of Department of Veterans Affairs service-connected compensation, that he felt the funds were not needed at age 60, and that he did not understand the consequences of not applying for SBP.

3.  The applicant provides a Notification of Eligibility for Retired Pay at Age 60 letter; a National Guard Bureau (NGB) Form 23A (Army National Guard Current Annual Statement); an NGB Form 22 (Report of Separation and Record of Service); a DD Form 1883 (Survivor Benefit Plan Election Certificate) and related documentation; a DD Form 214 (Report of Transfer or Discharge); a DD Form 214 (Certificate of Release or Discharge from Active Duty); discharge orders from the Air Force Reserve; an Army National Guard Retirement Points History Statement; and a death certificate in support of her application.  







CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 6 September 1935.  He and the applicant married on 
9 May 1966.  Having prior service in the Air Force, the FSM enlisted in the Army 
National Guard on 22 April 1978.  On 1 June 1994, he was honorably discharged from the Army National Guard due to being medically unfit for retention standards. 

2.  The FSM's DD Form 1833, dated 12 July 1994, shows he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and children coverage, option C, full base amount.

3.  The FSM turned age 60 in September 1995.

4.  On 18 August 2008, the FSM died.

5.  Records at the Defense Finance and Accounting Service fail to show the FSM applied for retired pay or that the applicant applied for the SBP annuity.

6.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.   

7.  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.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage.

8.  The Department of Veterans Affairs (VA) booklet, Federal Benefits for Veterans and Dependents, 2007 edition states that Dependency and Indemnity Compensation (DIC) payments may be available for surviving spouses of deceased service members or veterans, who have not remarried.  To be eligible, 



the deceased must have died from (1) a disease or injury incurred or aggravated 
while on active duty or active duty training; (2) an injury incurred or aggravated in line of duty while on inactive duty training or (3) a disability compensable by VA. 

9.  Title 10, U.S. Code, section 1450(c) requires an SBP offset for the amount of DIC paid.  Section 1450(c)(1) states that if, upon the death of a member participating in the SBP, the surviving spouse or former spouse is also entitled to 
DIC, the surviving spouse or former spouse may be paid an SBP annuity but only in the amount that the annuity otherwise payable would exceed that compensation.

10.  Title 10, U.S. Code, section 1450(e)(1) provides that if an SBP annuity is not payable because the DIC payment is greater, then any amount deducted from the retired pay of the deceased member shall be refunded to the surviving spouse or former spouse.

11.  Title 10, U.S. Code, section 1450(k)(1) states that, if a surviving spouse or former spouse whose annuity has been adjusted under subsection (c) subsequently loses entitlement to DIC because of remarriage of the spouse or former spouse, and if at the time of such remarriage the surviving spouse or former spouse is 55 years of age or more, the amount of the annuity of the surviving spouse or former spouse shall be readjusted, effective on the effective date of such loss of DIC, to the amount of the annuity which would be in effect with respect to the surviving spouse or former spouse if the adjustment under subsection (c) had never been made. 

12.  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. 

13.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  

DISCUSSION AND CONCLUSIONS:

1.  By law, receipt of retired pay, even though an entitlement, is only paid upon application by the member.  

2.  The FSM turned age 60 in September 1995, and the evidence of record shows he failed to apply for retired pay.  He died in August 2008.

3.  The FSM earned his retired pay.  His spouse, the applicant, helped him earn his retired pay.

4.  While there is insufficient evidence to show that it would be equitable to correct the FSM’s records to show he applied for retired pay prior to turning age 60, it would be compassionate to correct his records to show he applied for 
retired pay on 25 September 2002 (subject to the six year limitation imposed by the Barring Act) and elected the applicant as his beneficiary for unpaid retired pay.

5.  Since SBP is linked to the receipt of retired pay, and the evidence of record shows the FSM enrolled in the RCSBP for spouse and children coverage, it would be appropriate to pay the applicant the SBP if otherwise eligible.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  showing the FSM applied for retired pay, named the applicant as his beneficiary for unpaid retired pay, and returned the application to the appropriate office, where it was timely received and processed to be effective 25 September 2002; and

	b.  showing that the applicant applied for survivor benefits in a timely manner and that she be paid the SBP annuity effective 18 August 2008, the date of the FSM’s death, if otherwise eligible.




2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the records to show he applied for retired pay any earlier than 25 September 2002.



      _________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)                                         AR20080016816



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ABCMR Record of Proceedings (cont)                                         AR20080016816



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