IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100027329 


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 her husband's record to show he applied for retired pay at age 60 and he elected spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states that due to his illness the FSM was unable to apply for his retirement benefits and make an election under the SBP.

3.  The applicant provides:

* an ARPC Form 249-E (Chronological Statement of Retirement Points), dated 4 December 2003
* her marriage certificate
* the FSM's death certificate
* the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 October 1969
* a letter from Dr. J. W--d G-----l, dated 2 July 1997
* a letter from Dr. M-----a W--t, dated 3 March 2005

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 10 May 1975.

2.  On 21 November 1986, the FSM completed 20 years of qualifying service for retired pay at age 60.  There is no evidence in his Military Personnel Records Jacket (MPRJ) of him having received a 20-year letter.  There is no evidence of him having made an election under the Reserve Component Survivor Benefit Plan (RCSBP).

3.  ARPC Forms 249-E, dated 4 December 2003 and 8 June 2011, show he completed 21 years of qualifying service for retired pay at age 60 on 
21 November 1987.

4.  On 3 February 1990, the FSM was transferred to the Retired Reserve.

5.  On 18 March 1991, the FSM enlisted in the Minnesota Army National Guard (MNARNG).  On 15 August 1991, he was discharged from the MNARNG and he was transferred to the Retired Reserve.

6.  The FSM's Army National Guard Current Annual Statement, prepared on
4 December 2006, shows he was also an Army National Guard Unit member from 10 December 1991 to 17 September 1992.

7.  A letter from Dr. G-----l, dated 2 July 1997, stated the FSM had been diagnosed with Pick's disease, a form of frontal lobe dementia which has made him incapable of working.  The natural history of this disease is that it is progressive, irreversible, and untreatable.  His disability was permanent and he was unable to return to work.

8.  A letter from Dr. W--t, Minnesota Veterans Home, Minneapolis, dated 3 March 2005, stated the FSM had been a resident of the Minnesota Veterans Home since August 1997.  He was not competent to make his own decisions due to his illness.  He was permanently disabled and he would require 24-hour nursing care for the rest of his life.

9.  On 16 January 2006, the FSM turned age 60.

10.  On 19 July 2008, the FSM died from end state dementia, early onset.

11.  Public Law 92-425, enacted on 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.

12.  Public Law 95-397, the RCSBP, 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.
	a.  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.  Once a member elects either option 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.

	b.  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 applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.

DISCUSSION AND CONCLUSIONS:

1.  The FSM completed 21 years of qualifying service on 21 November 1987.  In the absence of evidence of a 20-year letter, it would be equitable to correct the FSM's military record to show he was issued a 20-letter on or about 
21 November 1986.  In addition, because no election of RCSBP can be found, it would be equitable to show he elected to decline enrollment in the RCSBP and choose at age 60 whether to start SBP participation.

2.  .He turned age 60 on 16 January 2006.  Therefore, it would be equitable to correct the FSM's military record to show he applied for retired pay in a timely manner and elected to participate in the SBP and that he elected spouse only coverage based on the full amount of his retired pay.

3.  Based on the foregoing, the Defense Finance and Accounting Service (DFAS) should compute the FSM's retired pay and pay the applicant any amount due from the date the FSM turned age 60 to the date of his death.  In addition, DFAS should pay the applicant an SBP annuity based on these corrections.

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 individual concerned be corrected by showing:

	a.  the FSM was issued a 20-year letter;

	b.  the FSM timely elected Option A under the RCSBP;

	c.  the FSM timely applied for retired pay and elected to participate in the SBP, electing spouse only coverage based on the full amount of his retired pay; and

	d.  DFAS timely received and processed the FSM's application.

2.  The Board also recommends DFAS audit the FSM's pay account as a result of the above corrections and:

	a.  pay the applicant any accrued retired pay due the FSM from the day he turned age 60 to the date of his death; and

	b.  pay the applicant an SBP annuity based on the full amount of the FSM's retired pay from the day after his 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)                                         AR20100027329



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ABCMR Record of Proceedings (cont)                                         AR20100027329



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