IN THE CASE OF:	  

		BOARD DATE:	    25 August 2011

		DOCKET NUMBER:  AR20110003134 


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 as follows:

* Show his retired rank/grade as a staff sergeant (SSG)/E-6
* Entitlement to the Reserve Component Survivor Benefit Plan (RCSBP) annuity based on his death

2.  The applicant states the FSM was appointed to SSG/E-6 in June 1989 while in the Pennsylvania Army National Guard (PAARNG).  Additionally, he was not afforded an opportunity to enroll in the RCSBP during outprocessing.

3.  The applicant provides:

* PAARNG promotion certificate
* Letter from the PAARNG Retirement Services Coordinator
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement)
* NGB Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Report of Separation from Active Duty)
* Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 7 July 1957.  He and Shirley, the applicant, were married on 5 September 1981. 
2.  Having had prior service in the Regular Army, the FSM enlisted in the PAARNG on 17 September 1983.  He served through multiple extensions or reenlistments and attained the rank/grade of SSG/E-6 on 6 June 1989.  

3.  He served in the rank/grade of SSG/E-6 until 19 February 1998, when he was voluntarily reduced to sergeant (SGT)/E-5 to accept a position with the 1st Battalion, 109th Infantry, New Milford, PA.

4.  On 30 March 2000, the PAARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (15-year letter).  He had been determined unfit because of physical disability and as such, he qualified for a 15-year letter. However, this notification letter did not give him the option to enroll in the RCSBP.

5.  On 18 April 2000, the PAARNG published Orders 075-001 ordering the FSM's honorable discharge from the ARNG effective 22 May 2000 by reason of medical disqualification and transferring him to the Retired Reserve in his rank/grade of SGT/E-5.

6.  His NGB Form 22 shows he completed 16 years, 6 months, and 5 days of total service for retired pay.  Items 5a (Rank) and 5b (Pay Grade) of this form show the entries SGT/E-5 and item 6 (Date of Rank) shows "83  09  17."

7.  On 13 January 2011, the FSM died.  His death certificate shows he was 53 years of age and that he was married to Shirley, the applicant, at the time of death.

8.  The applicant submitted a memorandum, dated 7 January 2011, from the PAARNG Retirement Services Coordinator, wherein he states the FSM was issued a 15-year letter on 30 March 2000.  Due to his medical condition at the time he received his eligibility notice and his discharge from the PAARNG for medical reasons on 22 May 2000, he was never given an opportunity to make an election under the RCSBP.  The necessary documents were never issued to him in what appears to be an administrative error. 

9.  Title 10, U.S. Code (USC), section 12731, 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 (15 years in the case of medical disqualification) of service as computed under section 12732 of this title.  

10.  Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Non-regular Service) states that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist:  (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, or court-martial; or (b) there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

11.  Public Law 92-425, the SBP, enacted 21 September 1972, 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 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and eligible to participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

* 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 receive an annuity immediately upon their death if before age 60

13.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.

14.  Title 10, U.S. Code, section 1447(6)(B)(i) states "in the case of a person who would have become eligible for Reserve-Component retired pay but for the fact that he died before becoming 60 years of age, such term means the amount of monthly retired pay for which the person would have been eligible if he had been 60 years of age on the date of his death, for purposes of an annuity to become effective on the day after his death in accordance with a designation made under section 1448(e) of this title; or in the case of a person who would have become eligible for Reserve Component retired pay but for the fact that he died before becoming 60 years of age, such term means the amount of monthly pay for which he would have been eligible if he had been 60 years of age on the date of his death.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was issued a 15-year letter on 30 March 2000.  He would have had 90 days to make a decision regarding his RCSBP election.  However, he was not given an opportunity to make such election.  It is reasonable to presume that if he had been given such opportunity, he would have elected RCSBP spouse coverage under Option C (immediate coverage).  

2.  Therefore, as a matter of equity, the FSM's records should be corrected to show he elected RCSBP spouse coverage within 90 days of receiving his 15-year letter and that his election was received and processed by officials at the Defense Finance and Accounting Service (DFAS).  Additionally, his spouse, the applicant, should be entitled to an annuity based on his death, effective 12 January 2011. 

3.  By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held by him or her during his or her entire period of service.  In the applicant's case, the evidence of record shows he was promoted to SSG/E-6 on 6 April 1989 and held that grade until 19 February 1998, when he voluntarily accepted a position in the lower grade.  Nothing in his records shows he was reduced for misconduct or any other negative/derogatory reason. 

4.  If he had lived to age 60, he would have been entitled to retire in the rank/grade of SSG/E-6 on his 60th birthday.  However, since he held the rank/grade of SGT/E-5 at the time he was transferred to the Retired Reserve on 22 May 2000 and since he did not live to his 60th birthday and could not apply for retired pay at that age, his orders that transferred him to the Retired Reserve properly show his rank/grade of SGT/E-5.

5.  Nevertheless, although he was properly placed on the retired list at the rank he held at the time, he would have been paid as an E-6 had he reached age 60 because his reduction to E-5 was not based on misconduct but rather manpower issues.  The applicant's annuity should be calculated based on E-6 pay. 

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 he elected RCSBP spouse coverage under Option C within 90 days of receiving his 15-year letter
* Showing his election was received and processed by DFAS in a timely manner
* Paying the applicant an SBP annuity, based on E-6 pay, retroactive to the day after the FSM's death 

2.  The Board further determined that the evidence presented was 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 his SSG/E-6 retirement rank/grade. 



      _______ _  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)                                         AR20110003134



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ABCMR Record of Proceedings (cont)                                         AR20110003134



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