IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100015639 


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 deceased former service member (FSM), requests, in effect, correction of the FSM's military records to show he applied for retired pay upon reaching 60 years of age and had elected spousal coverage under the Survivor Benefit Plan (SBP) based on his full retired pay.

2.  The applicant states the FSM was eligible for retired pay and had applied for such, but was denied.  The Army now alleges the FSM failed to submit the proper application at the time of his retirement.  The Army does not dispute the FSM's entitlement to retirement benefits.  The applicant argues that she is entitled to survivor benefits.

3.  The applicant provides no additional documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the FSM's military records to show his entitlement to retired pay and SBP based on his more than 20 years of active duty and Reserve service.  Counsel further requests that the FSM's widow receive those benefits.

2.  Counsel makes no additional statement.

3.  On behalf of the applicant, counsel provides copies of the FSM's:

	a.  death certificate;

	b.  U.S. Army Administration Center (USAAC) Form 589 (Chronological Record of Service for Retired Pay Under Provisions of Title 10, U.S. Code, Sections 1331-1337);

	c.  DA Form 66 (Officer Qualification Record);

	d.  WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service);

	e.  USAAC Form 819, dated 29 August 1967, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter); and

	f.  DD Form 256A (Honorable Discharge Certificate).

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 records show:

	a.  he was born on 9 March 1921,

	b.  he was appointed as a second lieutenant in the U.S. Army Reserve on 26 February 1942;

	c.  he was promoted through the ranks to lieutenant colonel, U.S. Army Reserve, on 26 July 1960; and

	d.  he had a son born of the applicant on 5 June 1956.

3.  USAAC Form 589, dated 22 August 1967, indicates the FSM completed 20 years, 3 months, and 29 days of qualifying service for retired pay.

4.  On 29 August 1967, the Supervisory Military Personnel Specialist, Retirement Certification Branch, Records Services Directorate, U.S. Army Administration Center, St. Louis, Missouri, sent the FSM a letter notifying him of his eligibility for retired pay at age 60 (20-year letter).

5.  On 19 May 1969, the Chief, Personnel Actions Division, U.S. Army Administration Center, St. Louis, Missouri, sent a letter to the FSM notifying him he had been discharged due to failure to earn sufficient retirement points for retention.

6.  On 9 March 1981, the FSM attained 60 years of age.  There is no documentary evidence of record showing he applied for retired pay and/or requested to participate in the SBP.

7.  The FSM's death certificate shows he died on 15 December 2003.

8.  On 9 November 2010, a representative from the Defense Finance and Accounting Service advised that its records show the FSM was not on the retired pay file at the time of his death.

9.  Public Law 95-397, the Reserve Component SBP, enacted on 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, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If the member dies before reaching age 60, premiums are deducted from the annuity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the widow of the deceased FSM, requests, in effect, correction of the FSM's military records to show he applied for retired pay upon reaching 60 years of age and elected spousal coverage under the SBP based on his full retired pay.

2.  The available evidence clearly shows the FSM served for more than 20 qualifying years and was entitled to receive retired pay based on those years of service.  As a matter of equity, the FSM's records should be corrected to show he had properly and timely applied for retired pay in March 1981.  Furthermore, all monies resulting from this correction should be paid to his widow.

3.  However, the available evidence does not sufficiently show the FSM intended to enroll in the SBP had his application for retired pay been properly processed.  Therefore, his records should not now be so changed to show such enrollment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  showing he properly completed his application for retired pay upon reaching 60 years of age,

	b.  showing he was entitled to retired pay for each month subsequent to attaining 60 years of age in March 1981, and

	c.  paying to his widow all monies due the FSM as a result of this correction.

2.  The Board further determined 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 showing the FSM enrolled in the SBP.



      ____________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)                                         AR20100015639



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ABCMR Record of Proceedings (cont)                                         AR20100015639



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