IN THE CASE OF:	  

		BOARD DATE:  12 January 2012

		DOCKET NUMBER:  AR20110009960 


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 daughter of a deceased former service member (FSM), requests the FSM's records be corrected to show she had completed 20 years of qualifying service for a non-regular retirement and that the applicant be shown as eligible for a Survivor Benefit Plan (SBP) annuity.

2.  The applicant states the FSM earned 141 points for her last year of service, but died prior to completing 20 qualifying years for retirement.  The FSM died less than 2 months prior to completing her 20 years of service.  The applicant contends that the FSM worked several jobs to make sure she could provide for the applicant.  The applicant is the FSM's only child and they were very close.  While the FSM was sick, she made phone calls and wrote letters to make sure arrangements for the applicant were made to provide for her.  

3.  The applicant provides copies of:

* Applicant's Certificate of Live Birth
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 3 June 1991
* FSM's Servicemember's Group Life Insurance Election and Certificate
* FSM's Death Certificate
* Newspaper article/obituary dated 10 June 2005
* DD Form 93 (Record of emergency Data)
* Executor's Statement, dated 13 April 2011, unsigned, indicating that the applicant is the daughter of the FSM

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 served as a member of the U.S. Army Reserve from 1 August 1985 through 6 June 2005, attaining the rank of major, pay grade O-4.  The FSM had completed 19 years, 10 months, and 6 days of qualifying service towards a non-regular military retirement.

3.  The FSM died on 6 June 2005.  She had earned 141 retirement points during her last 10 months of service.  A qualifying year requires a minimum of 50 points.

4.  An ARPC Form 249-E (Chronological Statement of Retirement Points), dated 
26 July 2011, shows that every year of her military service from 1985 until her last year were qualifying years.  She had no partial years that were not already credited towards retirement.

5.  The applicant's birth certificate shows she was born on 8 May 1983, making her 22 years and 29 days of age at the time of the FSM's death.

6.  Public Law 92-425, enacted 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.

7.  Public Law 95-397, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement [20 or more qualifying years] 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.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
8.  Title 10, U.S. Code, section 1447(11) provides that a dependent child, for purposes of SBP benefit, is unmarried and under 18 years of age; or if pursuing a full-time course of study in a recognized educational institution, is under 22 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show she had completed 20 years of qualifying service for a non-regular retirement and that the applicant be shown as eligible for an SBP annuity.

2.  The available evidence clearly shows the FSM had completed sufficient points during her last 10 months of service to make that period a qualifying year.  However, the FSM's overall total years of service still fell short of the required 
20 years.

3.  A review of the FSM's ARPC-249 showed that all of her service had been credited as qualifying service for retirement.  Therefore, no additional service can be obtained by adjusting the FSM's points.

4.  The available evidence clearly shows that the FSM died less than 2 months before completing 20 years of qualifying service for a non-regular military retirement.

5.  Furthermore, SBP benefits for children terminate when the child becomes 
18 years of age unless they are pursuing a full-time course of study in a recognized educational institution.  If pursuing such study, the SBP benefit stops when the child becomes 22 years of age. 

6.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X ___  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___________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)                                         AR20110009960





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ABCMR Record of Proceedings (cont)                                         AR20110009960



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