PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 June 1999                   
	DOCKET NUMBER:   AR1998012180

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show that he completed 20 years of qualifying service for a Reserve retirement.

3.  The applicant states that the FSM died after he had just finished his March (1992) drill.  He was just 10 days short of reaching 20 years service.  The only income she has is social security for her daughter.

4.  The FSM’s military records show that he was initially inducted into the Army on 3 February 1966, was transferred to the U. S. Army Reserve Control Group (Annual Training) on 2 February 1968, had a break in service, and enlisted in the Selected Reserve on 26 March 1974.  The FSM and the applicant were married on 19 March 1983.

5.  The FSM, while enroute to his home from his assigned drill duties, died in a head-on collision on 15 March 1992.  At that time he had completed 19 years, 11 months and 20 days of creditable service for retired pay.

6.  Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

7.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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 does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

CONCLUSIONS:

1.  There is no evidence of government error; however, the Board believes that had the FSM lived he would have continued to serve in the Selected Reserve and earn his Reserve retirement by his next drill period.  It would be an injustice to deny the FSM’s widow the SBP benefits to which she would have been entitled had the FSM lived but another 10 days and been given the opportunity to participate in the SBP upon his notification of eligibility to receive retired pay at age 60.
2.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 
     a.  redistributing the excess retirement points of the FSM concerned to provide him with a qualifying year of service for retirement year ending                2 February 1970; 
     b.  issuing a certificate of eligibility in the name of the FSM to show that he was entitled to Reserve retired benefits at age 60; and

     c. showing that the FSM made an RCSBP election of “spouse only,” option C, full base amount on the date he became eligible for retired pay and returned the election form (DD Form 1883) to ARPERCEN for processing, thereby allowing the applicant to become an eligible annuitant effective 15 March 1992, the date of the FSM’s death.

2.  That the applicant be advised that the Defense Finance and Accounting Service - Denver will be instructed to collect any “spouse” costs due from the date of eligibility to the date of the FSM’s death.

BOARD VOTE:  

__EB____  __RJW__  __JPS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Elizabeth Buchanon
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998012180	
SUFFIX		
RECON		
DATE BOARDED	19990609	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.	137.01	
3.		
4.		
5.		
6.