PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 June 2000                   
	DOCKET NUMBER:   AR2000035997

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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 she be entitled to draw the Survivor Benefit Plan (SBP) annuity and arrears of retired pay of her deceased spouse, a former service member (FSM).

3.  The applicant states that the FSM did not apply for retired pay because his health had deteriorated so badly that he was unaware/unable to determine what paperwork was needed to be done prior to his retirement.  

4.  The FSM’s military records show that he was born on.  After having had prior service in the U. S. Air Force, Army National Guard, and U. S. Army Reserve, he reenlisted in the Army National Guard on 31 May 1991.  

5.  The FSM’s notification of eligibility for retired pay at age 60 (his 20 year letter) is dated 13 November 1991.  On 22 November 1991, he enrolled in the Reserve Component SBP (RCSBP) for spouse-only coverage, full base amount, option C. He was transferred to the Retired Reserve on 6 December 1991.  

6.  A letter from a doctor with North Texas Neurology Associates notes that the FSM had an acoustic neuroma (a benign, progressively enlarging tumor within the auditory canal), chronic obstructive pulmonary disease, a history of cerebral vascular disease (stroke), peripheral neuropathy, peptic ulcer disease, and coronary artery disease.  The FSM had been a patient of his from 1998 until his death.  The FSM needed supervision in all of his activities of daily living.  

7.  The FSM became eligible to draw retired pay on 22 July 1999 but he apparently never applied for retired pay.  He died on 14 September 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 spouse-only 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 July 1999 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 included a history of cerebral vascular disease, 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 applicant’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 applied for retired pay on 1 January 1999 to become effective 22 July 1999.

2.  That the applicant be paid any and all due arrears of retired pay as a result of the above correction.

3.  That the applicant be entitled to an SBP annuity based on the aforementioned correction effective 14 September 1999, the date of the FSM’s death.

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:  

__mdm__  __wtm___  __clg___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000035997	
SUFFIX		
RECON		
DATE BOARDED	20000627	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.	128.00	
3.		
4.		
5.		
6.