IN THE CASE OF:	  

		BOARD DATE:	    13 August 2013

		DOCKET NUMBER:  AR20120018892 


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 correction of his record to show:

* the FSM applied for retired pay upon reaching age 60
* payment of the Survivor Benefit Plan (SBP) annuity

2.  The applicant states:

* after her husband's death, she discovered many issues and her first hurdle was obtaining a final copy of his Certificate of Death
* the Certificate of Death was not issued until 90 days after his death
* she was amazed after being informed by a military representative that upon her husband's death, there was an issue with his retirement paperwork
* she and the FSM handled their finances in separate roles and while she was changing accounts and after learning the FSM was not receiving retirement pay, she submitted forms to the U.S. Army Human Resources Command (HRC), Fort Knox, KY
* she was informed that the FSM's retirement paperwork was not on file and that he was not receiving his retirement
* she remembers the FSM received a packet form the Army with documents that he completed and returned
* 
she can understand how paperwork can get lost in such a large organization as the Army and how easy it would be to misplace one of these packets
* how the paperwork got misplaced is not the issue, but his wishes should be honored because he served his country for 23 years and did his part in completing the forms and sending them to the appropriate office

3.  The applicant provides:

* letter from HRC, Retired Pay Branch
* DD Form 2656-7 (Verification for Survivor Annuity)
* Certificate of Marriage
* Certificate of Death
* Army National Guard (ARNG) Retirement Points History Statement 
* DD Form 2656 (Data for Payment of Retired Personnel)
* Notification of Eligibility for Retired Pay at Age 60
* ARNG discharge orders

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 4 February 1943.  He enlisted in the Maryland Army National Guard on 15 June 1960.  His Notification of Eligibility for Retired at
Age 60, commonly known as the 20-year letter, is dated 23 September 1980.  This letter notified him he had completed the required years of service for non-regular retirement and that he would be eligible for retired pay upon application at age 60.

2.  In a letter, dated 3 October 1980, the State of Maryland Military Department informed the FSM of the requirement to complete a survivor benefit election within 90 days of the date of his 20-year letter.  HRC correspondence indicates he made no election at that time.

3.  The FSM and the applicant married on 27 November 1982.

4.  On 14 June 1983, the FSM was discharged from the ARNG and he was transferred to the Retired Reserve.

5.  The FSM turned age 60 on 4 February 2003; however, there is no evidence he submitted an application for retired pay.  As such, he was not placed on the Retired List.

6.  On 3 March 2003, the FSM completed a DD Form 2656 to enroll in the SBP for spouse only coverage and elected coverage based on full gross pay without supplemental SBP.  However, it appears the FSM never submitted the form to the appropriate agency.

7.  The FSM died on 21 April 2012.

8.  In a letter, dated 6 September 2012, the Retired Pay Branch, HRC, informed the applicant that by law, the FSM had 90 calendar days from the date he received his 20-year letter to submit a DD Form 1883 (SBP Certificate).  If an election was not made within the required 90 calendar days, the FSM would not be entitled to survivor benefit coverage until he applied for retired pay at age 60.  According to their records, the FSM never made an election or applied for retired pay.  Therefore, the applicant is not entitled to such benefits.  She was advised to apply to this Board for a review of her case.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

10.  Title 10, U. S. Code, section 12731(a) 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 of qualifying service.

11.  Title 10, U.S. Code, section 1448 provides that effective 1 March 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation, Volume 7B, Chapter 43.  When the spouse’s concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.  This chapter also states that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her late husband's record should be corrected to show he applied for retired pay on 4 February 2003, the date he turned age 60, so she may receive an SBP annuity effective on the date following his death.


2.  The evidence of record shows the FSM served in the ARNG and he was transferred to the Retired Reserve on 14 June 1983 after completing the required years of service for non-regular retirement.  Upon turning age 60, for unknown reasons, he did not submit an application for retired pay and as a result, he was never placed on the Retired List.  However, he was fully entitled to retired pay on the date he turned 60.  Therefore, it would be appropriate to correct the FSM's record to show he applied for retired pay to be effective 4 February 2003, the day he turned age 60, and pay the applicant all back retired pay due as a result of this correction.

3.  In reference to the SBP annuity, the evidence of record shows the FSM completed a DD Form 2656 in 2003; however, there is no evidence indicating he ever submitted the form to the appropriate agency.  However, because spousal concurrence is required in order to decline SBP coverage and there is no evidence the applicant concurred, it would be appropriate to default the SBP coverage to spouse coverage and that the applicant be paid the SBP annuity, minus any applicable premiums.

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:

	a.  showing the FSM applied for retired pay to be effective 4 February 2003 (his 60th birthday) and paying to the applicant all back retirement pay through the date of his death, and


	b.  paying the applicant the SBP annuity effective 22 April 2012, the day after the FSM’s death, less any applicable premiums.



      ___________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)                                         AR20120018892



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ABCMR Record of Proceedings (cont)                                         AR20120018892



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