PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 June 2000                   
	DOCKET NUMBER:   AR1999028182

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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 that the records of her deceased former spouse, a former service member (FSM), be corrected to show he was eligible for retired pay at age 60 and that the FSM’s son be granted a Survivor Benefit Plan (SBP) annuity.

3.  The applicant states that the FSM remarried about 8 months before his death. When she learned his wife would not be eligible to collect any retirement benefits because they were married for less than a year, she realized their son might benefit from his father’s military career.  The FSM’s Summary of Retirement Points erroneously shows the points for his final year as 48 whereas it should read 50 points.  This correction would give him 20 qualifying years.  In addition, his Air Force Reserve time is not reflected in his records.  He continued to serve in the Reserve even after he was stricken with cancer in 1993 and again in 1995 because, she is convinced, he knew how close he was to completing his 20th year.

4.  The FSM's military records show that he was born on 21 January 1950.  He enlisted in the Regular Army on 20 July 1970.  He was released from active duty on 30 July 1973 and was discharged from the U. S. Army Reserve (USAR) on  19 July 1976 after completing his military reserve obligation.  He enlisted in the U. S. Air Force Reserve (USAFR) on 7 January 1978 and was discharged on      8 September 1978 for the purpose of enlisting in the USAR on 9 September 1978.

5.  The FSM and the applicant married on 30 December 1978.  They had one son, born on 26 July 1984.  They divorced on 30 July 1986.  The SBP is not discussed in the divorce decree.  It does state that the FSM agreed to make the child the beneficiary of his Servicemen’s Group Life Insurance (SGLI) policy to provide for his future care should the FSM die.

6.  The FSM remarried on 22 September 1994.  He died of cancer of the liver on 27 June 1995.  The death certificate states that the approximate interval between onset of the cancer and death was a few months and he had previously had lymphoma hepatitis C.

7.  Prior to correction as a result of this application, the FSM’s Summary of Retirement Points correctly ended his first period of service on 19 July 1976, with his discharge from the USAR.  It omitted his USAFR service and erroneously restarted his retirement year beginning date with 9 September 1978, the date he reenlisted in the USAR.  The calculations based on this Summary resulted in his having 19 years qualifying service as of the date of his death.

8.  The FSM’s USAFR service was verified and his Summary of Retirement Points corrected to show his first period of service correctly ended on 19 July 1976, with his discharge from the USAR, and correctly restarted on 7 January 1978, the date he enlisted in the USAFR.  This correction means he completed 20 qualifying years for retirement on 6 January 1995, with credit for a partial year through 27 June 1995.

9.  Title 10, U. S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and, having completed the service requirement during the period beginning on 1 October 1994 and ending on 30 September 1999, shall have performed the last six years of qualifying service while a member of a reserve component.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  It required a 2-year waiting period for new spouse eligibility following post-retirement remarriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to       1 year following post-retirement remarriage.

11.  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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60.

12.  Title 10, U. S. Code, section 1447(7) defines “widow” to mean the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay was married to him for at least one year immediately before his death.

13.  Title 10, U. S. Code, section 1450 states that as of the first day after the death of a participant, the SBP annuity would be paid first to the eligible surviving spouse or former spouse and then to surviving dependent children if the eligible surviving spouse or eligible former spouse is dead, dies, or otherwise becomes ineligible.

CONCLUSIONS:

1.  The Board concludes that a Government error occurred in this case.  

2.  Although the FSM had the opportunity between 1978 and the date of his death to call attention to the omission of his USAFR service from his Summary of Retirement Points, the fact remains that he had USAFR service that qualified towards his retirement.  The correct inclusion of his USAFR service would have made him eligible to receive his notification of eligibility to receive retired pay at age 60 (his 20-year letter) on 7 January 1995 (the day after he completed 20 qualifying years).  He then would have had 90 days to enroll or decline to enroll in the RCSBP.

3.  The Board concludes that the FSM would have elected to enroll in the RCSBP had he received his 20-year letter.  He had had a prior bout with cancer and he probably knew he had liver cancer at least near the end of his 90-day enrollment eligibility period.  However, the Board further concludes that it would have been reasonable to presume that he would have elected to enroll his entire family –current spouse and minor son (to include any future children he may have had).  The 1-year rule applies to members who remarry after they become retirement-eligible.  Since the FSM remarried on 22 September 1994 and became retirement-eligible on 6 January 1995, the 1-year rule does not apply to his current spouse.  She would have been the eligible surviving spouse upon his death and would have had first priority to receive the annuity.  

4.  Although the statute would have allowed the FSM to elect child only coverage, the statute would also require spousal consent for such an election.  Since the surviving spouse is entitled by federal law to the SBP benefits, it would be an unconstitutional taking for the Board to correct the record in a manner that would affect her rights without her being a party in the proceedings.  Thus, without the surviving spouse’s consent, the Board cannot correct the record as requested.  To do so would be contrary to the due process of law.

5.  If the applicant can obtain the surviving spouse’s consent for the correction, in writing, notarized and with full knowledge of the waiver of rights and its consequences, the case could be reconsidered.  In the alternative, evidence that the surviving spouse has remarried before age 55 or that she is deceased would entitle the FSM’s son to have the case reconsidered.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM concerned was issued his notification of eligibility for retired pay at age 60 on 7 January 1995.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jhl___  __jns___  __mhm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			JoAnn H. Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028182	
SUFFIX		
RECON		
DATE BOARDED	20000629	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.	135.03	
3.		
4.		
5.		
6.