IN THE CASE OF:  

		BOARD DATE:  8 October 2014

		DOCKET NUMBER:  AR20140000822 


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, in effect, correction of the FSM's military records to show he:

	a.  completed 20 qualifying years of military service for retired pay; 

	b.  requested and was approved for retirement at age 60; and 

	c.  elected to participate in the Survivor Benefit Plan (SBP) with his spouse as beneficiary.

2.  The applicant states, in effect:

	a.  Her spouse served in the Army for over 20 years.  He submitted retirement paperwork requesting his 20 year letter on 12 August 2009.  He received a letter from the Army stating he did not have sufficient points to receive his 
20-year letter.  She and her husband started their own investigation and found out he did have enough points to qualify for a 20-year letter.   

	b.  Her spouse died on 14 March 2012.  His 20-year letter is dated 18 January 2013, nearly a year after his death.

	c.  If the Army and National Guard had accurately reported her spouse's retirement points he would have received his 20-year letter prior to his death.

	d.  She should not have to suffer without retirement benefits and the SBP because of mistakes made by the Army and National Guard.

3.  The applicant provides copies of:

* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* their marriage certificate
* FSM's death certificate
* U.S. Army Human Resources Command (HRC) letter, dated 23 May 2013
* applicant's letter dated 27 December 2013
* Headquarters, California Army National Guard (CAARNG) memorandum, subject:  Notification of Eligibility for Retired Pay for Non-Regular Service 
(20 years), dated 18 January 2013
* Verification for Survivor Annuity, dated 24 April 2013
* DA Form 108 (Application for Retired Pay Benefits)
* NGB Form 23B (Army National Guard Retirement Points History Statement), prepared 18 January 2013

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 10 August 1948 and would have been 
60 years of age on 10 August 2008.  He was inducted on 5 February 1969.  Following a break in service he enlisted in the CAARNG on 26 February 1979 and served until 15 November 2005 when he was honorably discharged.

2.  The FSM and the applicant married on 28 March 2008.  He died on 14 March 2012 at age 63.  

3.  His NGB Form 23B, dated 18 January 2013, shows he had 20 qualifying years for retirement as of 23 February 1992.  He would have been eligible to apply for retired pay on 10 August 2008, when he reached age 60.

4.  The CAARNG issued his 20-year letter on 18 January 2013.

5.  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.  

6.  Public Law 95-397, the Reserve Component SBP (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.  

7.  Title 10, U.S. Code (USC), section 1448(f) (Coverage of Survivors of Persons Dying when or before Eligible to Elect Reserve Component Annuity), provides in:

	(1)  Surviving Spouse Annuity – The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who –

		(A) is eligible to provide a reserve-component annuity and dies – 

			(i) before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retire pay.

8.  Title 10, USC, section 12731(a), states 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

DISCUSSION AND CONCLUSIONS:

1.  The NGB Form 23B shows the FSM had completed 20 qualifying years in February 1992 and was eligible to apply for retired pay at age 60 (10 August 2008).  Unfortunately, it appears the FSM was unable to establish his eligibility for non-regular retirement during his life time because the CAARNG issued his 20-year letter on 13 January 2013, well after he was eligible and after his death on 12 March 2012.  

2.  If the FSM had died before turning age 60, the applicant would have been entitled, as a matter of law, to an SBP annuity per Title 10, USC, section 1448(f)(1)(A)(i).  However, entitlement to retired pay requires a voluntary action on the part of the member.

3.  The FSM's records should be corrected to show that his 20-year letter was issued on 1 January 2008 and that the FSM was not married and declined RCSBP coverage.  His records should further be corrected to show that on         1 June 2008, about two months after his marriage to the applicant and in conjunction with his application for non-regular retired pay upon attaining 60 years of age, he elected full spouse coverage under the standard SBP.
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:

	a.  was issued his 20-year latter on 1 January 2008 and having no eligible beneficiaries declined to make an RCSBP election;

	b.  applied for and was approved for retired pay at age 60 in a timely manner and elected full coverage under the SBP at that time and named his spouse as beneficiary; and 

	c.  paying his surviving spouse all the FSM's retroactive retired pay and the SBP annuity, less any premiums due.



      ______________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)                                         AR20120018730



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ABCMR Record of Proceedings (cont)                                         AR20140000822



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