BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20110008679 


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).


CONSIDERATION OF ADDITIONAL EVIDENCE:

19.  On 28 April 2011, new information was received from an official at the Retired and Annuity Pay Operations, Defense Finance and Accounting Service (DFAS), Indianapolis, IN, in regard to the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100009484, dated 9 September 2010.

20.  In his letter, the DFAS official states that the action taken by the Board recommended that the FSM's record should be corrected to show he applied for Reserve retirement at age 60 and that he had declined the Reserve Component Survivor Benefit Plan (RCSBP) on 1 July 1963.  DFAS added that they cannot comply with the Board's decision without further clarification regarding the SBP:

	a.  If the applicant declined RCSBP coverage, he remained eligible to apply for the SBP at the time of retirement (at age 60).

	b.  If no SBP election is made and the applicant had an eligible spouse, then automatic SBP is established at the time of retirement.

	c.  The DD Form 108 (Application for Retired Pay Benefits) should state the applicant applied for retirement on his 60th birthday, i.e. 9 September 1982.  (This issue was resolved by email.)  

21.  Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and established the SBP.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.

22.  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)  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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  An Open Season was established from 1 October 1978 through 30 September 1979, later extended to 31 March 1980, for those who retired prior to the establishment of the RCSBP.

23.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 through 30 September 1982.  

24.  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.  

ADDITIONAL DISCUSSION AND CONCLUSIONS:

5.  At the time of the decision in ABCMR Docket Number AR20100009484, dated 9 September 2010, it was the intent of the ABCMR to make the FSM’s record as administratively correct as it should properly have been at the time.

6.  The ABCMR's decision in Docket Number AR20100009484 granted the applicant partial relief in that it stated the FSM's record should corrected to show he applied for retirement on 9 September 1982 (his 60th birthday) and paying back retirement pay and allowances through the date of death.  The same decision denied so much of the application that pertained to the SBP annuity at the time of death.  The ABCMR's decision to grant the applicant the benefit of the FSM's retired pay was based strictly on equity; it was not legally required.  As a matter of equity, the ABCMR felt the grant of SBP would constitute unjust enrichment.  However, the decision as worded did not specifically address what the SBP election would have been on his 60th birthday.

7.  The RCSBP was established on 30 September 1978.  The FSM turned 60 on 9 September 1982.  There is no evidence in his record to show that he elected during the first RCSBP Open Season to reverse his 1 July 1963 decision and buy into the new RCSBP.  In effect, by not enrolling, he deferred his decision to age 60.

8.  Likewise, there is no evidence in his record to show that the FSM elected to enroll in the RCSBP during the second Open Season available to him, during the period 1 October 1981 through 30 September 1982.  

9.  When he turned 60, the FSM could not enroll in the SBP since he was not receiving retired pay.  But even if he had applied for and were receiving retired pay at age 60, the fact no action was taken by him to previously enroll his spouse in the RCSBP (combined with the actual fact that he did not apply for retired pay) makes it reasonable to presume that he intended not to participate in the SBP on his 60th birthday.  Additionally, although there was a requirement to notify the FSM's spouse at the time, there was no legal requirement for his spouse to concur with his decision at the time.

10.  Therefore, to satisfy DFAS's requirement to include language specific to the standard SBP, the recommendation in ABCMR Docket Number AR20100009484 should be amended as shown below.

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by amending the Board’s recommendation appearing in ABCMR Docket Number AR20100009484, dated 9 September 2001 to read:

	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 by corrected by:

* showing the FSM applied for retired pay to be effective on his 60th birthday (9 September 1982) and his application was timely received and processed
* showing the FSM elected not to participate in the SBP at that time
* showing the Army notified the applicant of the FSM's election not to participate in the program
* paying to the applicant the FSM's back retired pay due as a result of the above corrections through the date of the FSM's 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)                                         AR20110008679



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ABCMR Supplemental Record of Proceedings (cont)                 AR20110008679



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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