IN THE CASE OF:
BOARD DATE: 12 April 2012
DOCKET NUMBER: AR20110018325
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 to show he requested non-regular service retirement pay at age 60.
2. The applicant states the FSM passed away without receiving his retirement benefits. He did not apply for retirement pay at age 60. He was attempting to apply just before his death. He did not receive a reply to his request for application requirements. He did receive a letter in response to a request to the National Personnel Records Center (NPRC), St. Louis, MO for past records for his research to apply.
3. The applicant provides:
* the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* a letter from NPRC, dated 2 August 2010
* her permanent resident card
* the FSM's death certificate
* their marriage certificate
CONSIDERATION OF EVIDENCE:
1. The FSM's records show he was born on 5 October 1944. He served 3 years and 4 months in the U.S. Air Force. He served 2 years, 3 months, and 1 day in the Hawaii Army National Guard.
2. On 22 January 1982, he enlisted in the California Army National Guard (CAARNG). His highest grade held was staff sergeant/pay grade E-6.
3. On 2 August 1993, he received his 20-year letter notifying him of his eligibility for retired pay upon application at age 60. A DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 12 September 1993, shows he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP). He elected children only coverage, based on full amount of his retired pay, and he elected option B.
4. On 2 May 1996, he was discharged from the CAARNG and transferred to the Retired Reserve. An Army National Guard Retirement Points History Statement, prepared on 10 January 1996, shows he had 22 years, 4 months, and 8 days qualifying service for retirement pay at age 60 and 2595 total points for retired pay.
5. On 30 December 1996, the applicant and the FSM were married.
6. The FSM reached age 60 on 5 October 2004. However, for unknown reasons he did not apply for retired pay benefits. On 3 September 2010, the FSM died.
7. The letter, dated 2 August 2010, from NPRC to the FSM indicated that records, not identified, were provided to the FSM in response to his request.
8. Title 10, U.S. Code authorizes retired pay benefits to members and former members of the Reserve components who have completed a minimum of 20 years qualifying service and attained the age of 60.
9. 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
DISCUSSION AND CONCLUSIONS:
1. The FSM completed 22 years, 4 months, and 8 days of qualifying service for retirement pay at age 60 and he was issued a 20-year letter. This shows he was fully entitled to retirement pay at age 60. The applicant states the FSM was attempting to apply for retirement pay before his death, but never received a reply to his requests. He did receive records from NPRC in August 2010 in response to his request for past records for his research, and it is reasonable to believe they were requested in his effort to apply for retired pay. Therefore, it would be equitable to change his records to show he applied for retired pay at age 60 and paying any back retirement pay through the date of his death to the applicant, his surviving spouse, if otherwise eligible.
2. Although relief is appropriate, the Board has a fiduciary duty to protect the viability of the SBP. In order to grant relief, all RCSBP premiums due from the FSMs retirement to his date of death should be paid into the SBP. These premiums would have rightfully been paid by the FSM once he started receiving his retired pay.
BOARD VOTE:
____X____ ___X_____ ____X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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 the FSM applied for retired pay to be effective at age 60, 5 October 2004, and paying any back retirement pay (less any RCSBP costs that would have been due) through the date of his death to the applicant.
_______ _ _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) AR20110018325
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ABCMR Record of Proceedings (cont) AR20110018325
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