IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009484 


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 the records of her deceased husband, a former service member (FSM), be corrected to show he was retired on 9 September 1982, the date he turned 60.  She also requests:

	a.  the issuance of unpaid retired pay from his date of eligibility, 9 September 1982 to the date prior to his death, 19 February 2003; and 

	b.  entitlement to his Survivor Benefit Plan (SBP) based on his death on 20 February 2003.  

2.  The applicant states that an application was made in 2003 for the SBP annuity but it was denied by officials in St. Louis who stated there was no 20-year letter or an SBP form on file.  However, a 20-year letter was in fact issued on 2 May 1968 and there was no SBP in effect for Reserve Component (RC) Soldiers. 

3.  The applicant provides the following documents:

* A copy of the FSM's Notification of Eligibility for Retired Pay at Age 60
(20-year letter), dated 2 May 1968
* A copy of Special Orders Number 228, dated 25 November 1970
* A copy of the FSM's NGB Form 23 (Army National Guard Retirement Points History Statement), dated 21 July 2009
* A copy of the FSM's Retired Reserve Certificate, dated 10 December 1970
* A copy of her marriage license and certificate, dated 2 April 1945
* A copy of the FSM's death certificate, dated 20 February 2003

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 records show he was born on 9 September 1922.  He married his spouse Carolyn on 29 March 1945.

3.  Having had prior service in the Air Corps, the FSM's records show he was appointed as a first lieutenant in the Texas Army National Guard (TXARNG) and executed an oath of office on 3 July 1948.

4.  He served in various ARNG staff and leadership positions, within and outside of the continental United States, and was appointed as or promoted to major in June 1959 and lieutenant colonel (LTC) in September 1963.

5.  On 1 July 1963, he completed a DA Form 1041 (Election of Options Under the Uniformed Services Contingency Option Act of 1953).  He indicated that he did not desire to receive reduced retired pay in order to provide an annuity to his dependents.  He and his personnel officer authenticated this form by placing their signatures in the appropriate blocks.

6.  On 2 May 1968, the National Guard Bureau (NGB) issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service for non-regular retirement and would be eligible for retired pay upon application at age 60.  

7.  On 25 May 1970, the Adjutant General's Office, State of Texas, published Special Orders Number 228, honorably discharging the FSM from the ARNG and transferring him to the USAR Control Group (Retired Reserve) by reason of completion of maximum service.  
8.  The FSM's NGB Form 23 shows he completed 26 years, 7 months, and 
2 days of qualifying service towards non-regular retirement.  This statement also shows a break-down of his total career points by retirement year end (RYE).  

9.  On 9 September 1982, he turned 60.  However, for unknown reasons, he never submitted an application for retired pay benefits and he was never placed on the retired list.

10.  On 20 February 2003, the FSM died. 

11.  On 9 October 2003, the FSM's daughter telephonically contacted U.S. Army Human Resources Command, St. Louis to determine why her mother was denied benefits.  She was advised that the FSM apparently did not earn 20 qualifying years.  She was also advised to contact the TXARNG Archivist to get a 20-year letter and a copy of the DD Form 1883 (Survivor Benefit Plan Election).  The FSM's daughter was advised that her mom should apply to the Army Board for Correction of Military Records.  

12.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

13.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-regular Service), paragraph 2-1a indicates that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a RC Soldier.  The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

14.  Public Law 83-239 dated 8 August 1953, established the Uniformed Services Contingency Option Act (USCOA).  It provided service members the opportunity to elect one or more options, to provide an annuity upon the member's death in retired status in amounts equal to 1/8, 1/4, or 1/2 of the reduced retired pay.  Four options were available: Option 1: widow; Option 2: surviving child or children; Option 3: widow and surviving child or children; or Option 4: Decline coverage.  Election had to be made before end of the 18th year of service.  The annuity was 1/2, 1/4, or 1/8 of retired pay.  The plan was self-supporting (no Federal subsidy) and covered only persons dependent on member at retirement. There was a 180-day open enrollment for retirees (1 November 1953 to 30 April 1954).

15.  Public Law 87-381, dated 4 October 1962, established the Retired Serviceman's Family Protection Plan (RSFPP).  It provided for the same election options and annuity amounts as USCOA but the costs were high and the annuity was fixed.  It also permitted premiums to stop if participant elected Option 4.

16.  Public Law 90-485, dated 13 August 1968, made minor amendments in that an election must be made before member completes 19 years of service; Option 4 was automatic if member retired on or after 13 August 1968, and children remained eligible until age 23 if unmarried and full-time student.

17.  Public Law 92-425 dated 21 September 1972, repealed the RSFPP and established the SBP.  It opened enrollment for retirees, including Reservists who were age 60 or older (21 September 1972 - 20 September 1973).  It required retiring members and spouses to be informed of SBP options and effects. An election by a pre-21 September 1972 retiree on the basis of adequate information concerning the Plan or an election by a post-21 September 1972 retiree (unless revoked or changed before the first day of retirement) is irrevocable (with few exceptions such as mental incapacitation, total disability, or withdrawal under another law).  Other clauses of this law included the following:

* Spouse cost:  2.5% of first $300 of the base amount, plus 10% of remaining base amount
* Spouse annuity payments: Until age 62, payment is 55% of base amount; Age 62 or older, payment is reduced, dollar-for-dollar, by Social Security entitlement resulting from member's military service performed after 1956 (Social Security Offset (SSO)
* Cost-Of-Living Adjustments applied to base amount and annuity
* Premium deductions continued after loss of spouse
* Annuity reduced by Dependency and Indemnity Compensation (DIC) awarded by VA if death is service-connected
* Remarriage of surviving spouse before age 60 suspended payment
* Two-year waiting period for new spouse eligibility following post-retirement remarriage

18.  Public Law 95-397 dated 30 September 1978, established the RCSBP open enrollment, 1 October 1978 - 30 September 1979; later extended to 31 March 1980.  The RCSBP part of SBP protects a portion of the service member’s retirement income from Notice of Eligibility for Retired Pay up to age 60.  Beyond age 60, retirement income is protected by the normal SBP.  This law 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.  Four basic choices are available:  Decline to participate; if a Reservist has an eligible beneficiary at time of election and declines to participate, that decision is irrevocable.  If the Reservist has no eligible beneficiary at time of election and declines to participate, the Reservist will be allowed to elect participation at a later date based upon marriage, children, or gained insurable interest.  Option (A) elect to decline enrollment and choose at age 60 whether to start SBP participation.  Option (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.  Option (C)  elect that a beneficiary receives an annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP.  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 – the options automatically roll into SBP coverage.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her late husband's records should be corrected to show he was retired on 9 September 1982, the date he turned 60, so she may receive his retired pay from age 60 to his date of death and an SBP annuity effective on the date of his death. 

2.  With respect to the FSM's retired pay, the evidence of record shows the FSM served in the ARNG and was transferred to the Retired Reserve in the rank/grade of LTC/O-5 on 9 December 1970 after having completed 26 years, 7 months, and 2 days of qualifying service towards non-regular retirement.  When he turned 60, for unknown reasons, he did not submit an application for retired pay and hence was never placed on the retired list.  

3.  Nevertheless, he was fully entitled to retired pay on or subsequent to the date he turned 60.  Therefore, he should be placed on the retired list in his retired rank/grade of LTC/O-5, effective 9 September 1982, the date he turned 60, and restoration of all back pay and allowances due on this date.



4.  With respect to the annuity, the evidence of record shows the FSM completed a DA Form 1041 on 1 July 1963, wherein he indicated that he did not desire to receive reduced retired pay in order to provide an annuity to his dependents.  He had an opportunity to enroll in the RCSBP when Public Law 95-397 established the RCSBP open enrollment from 1 October 1978 to 30 September 1979 (later extended to 31 March 1980) but he did not do so.  Since he did not enroll, there was no annuity at the time of his death.  

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 showing the FSM applied for retirement on 9 September 1982 (his 60th birthday) and paying all back retirement pay and allowances through the date of death.

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 payment of an SBP annuity as a result of the FSM's death.  



      _______ _  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)                                         AR20100009484



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ABCMR Record of Proceedings (cont)                                         AR20100009484



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