PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR2000035726

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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 she be entitled to draw the Survivor Benefit Plan (SBP) annuity of her deceased spouse, a former service member (FSM).

3.  The applicant states that the FSM was extremely ill with numerous problems and was not able to take care of his personal affairs.  He always counted on his retirement and social security to help her survive after his death.

4.  The FSM's military records show that he was born on.  He enlisted in the Regular Army on 19 April 1955.  The FSM’s DD Form 398, Statement of Personal History dated 23 January 1964 shows that he and the applicant were married on that date.  He was discharged, for failing to take action to meet length of service requirements, on 13 April 1972.  He enlisted in the U. S. Army Reserve on 1 August 1972.  He received his notification of eligibility for retired pay at age 60 (his 20-year letter) on 17 November 1980 and at that time enrolled in the Reserve Component SBP (RCSBP), option C.  He was transferred to the Retired Reserve on 30 April 1981.

5.  A letter from the Owen County Clinic noted that the FSM was a diabetic with bilateral above the knee amputations, had had numerous transient ischemic attacks (mini-strokes), had a stroke in 1996 and had chronic circulatory problems secondary to his diabetes mellitus.  His mental capacity progressively deteriorated.  

6.  The FSM became eligible to draw retired pay on 11 March 1997 but the Defense Finance and Accounting Service has no record of his applying for retired pay.  

7.  The FSM died on 15 June 1999.

8.  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 member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Option B and C participants do not make a new SBP election at age 60; it automatically rolls over into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.
9.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  Chapter 2 states that it is the responsibility of each qualified individual to submit his or her application for retired pay using DD Form 108, Application for Retired Pay Benefits.

CONCLUSIONS:

1.  The evidence of record shows that the FSM elected RCSBP coverage, option C at the time he received his 20-year letter.  His RCSBP coverage would normally have rolled over into the SBP upon his reaching age 60 in March 1997 and his being in receipt of retired pay.  RCSBP and SBP costs would then have been taken out of his retired pay.

2.  However, the evidence of record shows that the FSM never applied for retired pay.  The Board concludes that his severe medical problems, which began in 1996 and included mental deterioration, hampered his capability to apply for retired pay.  The Board concludes that it is an injustice to deny the applicant an SBP annuity that the FSM properly elected solely because he failed to apply for retired pay.  

3.  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 showing that the FSM enrolled in the RCSBP for spouse coverage, option C, full base amount on 1 December 1980 and that he applied for retired pay on 1 January 1997 to become effective 11 March 1997.

2.  That the applicant be paid any and all retired pay due to the FSM for the period 11 March 1997 until his death.

3.  That the applicant be entitled to an SBP annuity effective 15 June 1999, the date of the FSM’s death, based on the corrections noted in paragraph 1 above.

4.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any RCSBP/SBP costs due.

BOARD VOTE:  

__slp___  __lem___  __aao___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000035726	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.