IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100010364 


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, correction of the records of her deceased husband, a retired former service member (FSM), to show:

* he made a timely application for retired pay at age 60
* he made an election for spouse coverage, full base amount under the Survivor Benefit Plan (SBP) at age 60 in a timely manner
* she filed a claim for a survivor benefit annuity in a timely manner following the FSM's death
 
2.  The applicant states the FSM did not apply for retired pay or make an SBP election in 2004 when he reached age 60.  She states she believes he was already suffering from mental illness at that time, but he would never see a doctor for the problem.

3.  The applicant provides a copy of the following documents:

* the FSM's Certificate of Death
* Orders assigning the FSM to the Retired Reserve
* the FSM's Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 30 April 1997
* an NGB Form 23B (Army National Guard Retirement Points History Statement), prepared on 7 December 2009

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 10 April 1944.  His military records show he enlisted in the Regular Army on 21 September 1964.  He completed initial entry training, he was awarded the military occupational specialty of aircraft maintenance mechanic, and he served3 years prior to his release from active duty.  He enlisted in the North Carolina Army National Guard (NCARNG) on 14 September 1981.  The highest rank/grade he attained while serving was staff sergeant.  

2.  The FSM's records contain a DD Form 1172 (Application for Uniformed Services Identification Card DEERS Enrollment) which shows he married the applicant on 9 August 1975.

3.  The applicant was issued a memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service, dated 30 April 1997.  His records contain an endorsement, Subject: Notification of Eligibility for Retired Pay at Age 60, with a suspense date of 18 April 1997, indicating he was to give immediate attention to the enclosed documents regarding his Reserve Component Survivor Benefit Plan (RCSBP).  It stated he was required by law to complete his RCSBP election within 90 days of receipt.  An RCSBP Checklist also contained in his military records indicates if he opted not to elect to participate in RCSBP at that time he could defer election until making application for retired pay at age 60.  However, if he was married, his spouse must concur with this election.  There is no evidence he complied with this endorsement.

4.  The FSM's NGB Form 22 shows he was honorably discharged from the NCARNG and assigned to the U.S. Army Reserve (USAR) Control Group (Retired Reserve), effective 30 April 1997, after completing 18 years, 7 months, and 17 days of total service for pay.

5.  During the processing of this case, a staff member of the Board contacted an official at the Defense Finance and Accounting Service (DFAS).  The official indicated that there was no record of the FSM requesting or receiving retired pay or of him making an SBP election.

6.  The staff member of the Board also contacted the U. S. Army Human Resources Command, Transition and Separations Branch, St. Louis, MO.  The official stated that there is no evidence in the FSM's records indicating he:

   a.  completed an RCSBP election at the time of receiving his notification of eligibility for retired pay at age 60 letter,

   b.  applied for retired pay upon reaching the age of 60, or
   c.  completed an SBP election at the time he reached 60 years of age.

7.  The applicant provided a Certificate of Death showing her as the FSM's spouse and that he died on 16 August 2008 at the age of 64.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

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.  defer or decline to make an SBP election until beginning to draw retired pay age 60;

   b.  provide an annuity beginning on retiree's 60th birthday (if death occurs before 60), or upon retiree's death (if age 60 or older upon death); and

   c.  provide an annuity beginning on the day after retiree's death, regardless of retiree's age at death.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM was already suffering from mental illness before his death, leading him to not applying for retired pay and not making an SBP election.  Since there is no other feasible reason the FSM did not apply for retired pay it is reasonable to accept this explanation.

2.  Evidence indicates the FSM was married to the applicant at the time he failed to make an SBP election or deferred making an election when he received his eligibility for retired pay notification letter in April 1997.  Therefore, based on the law in effect at the time, the FSM's RCSBP coverage would have "defaulted" to Option A, thereby making an SBP election concurrently with his application for retired pay at age 60.

3.  Evidence further indicates the FSM was married to the applicant when he failed to apply for his retired pay and make an SBP election upon reaching 60 


years of age.  Based on the law in effect at the time, he would have been required to select his spouse as his SBP beneficiary in the full annuity amount, unless she agreed to forego the SBP coverage.

4.  Therefore, it would be in the interest of justice to correct the FSM's records to show he applied for retired pay and concurrently made an SBP election for spouse coverage in a timely manner.

5.  Further, it would be in the interest of justice to correct the FSM's records to show that his widow applied for the SBP annuity (based on full amount of retired pay), effective 17 August 2008, the day following the date of the FSM's death.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the FSM concerned be corrected by:

    a.  showing the FSM timely applied for retired pay prior to reaching age 60 (10 April 2004);

   b.  showing the FSM concurrently elected to enroll in the SBP for spouse coverage, full base amount at the time of his application for retired pay; and

   c.  showing DFAS timely received and processed the FSM's application for retired pay and SBP enrollment; and

   d.  showing the applicant timely filed a claim for SBP at the time of the FSM's death.



2.  The Board further recommends that based on the above corrections DFAS pay the applicant any retirement pay and SBP money due her.



      ___________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)                                         AR20100010364



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ABCMR Record of Proceedings (cont)                                         AR20100010364



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