PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 November 2000                   
	DOCKET NUMBER:   AR2000036897

	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. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch, Jr.		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 a 20-year letter (notification of eligibility for retired pay at age 60) be issued to her deceased spouse, a former service member (FSM), and that his records be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

3.  The applicant states the FSM did not receive his 20-year letter before he died and so he was not able to enroll in the RCSBP.

4.  The FSM’s military records show that he was born on 25 February 1952.  He enlisted in the Regular Army on 29 December 1970.  He and the applicant married on 30 June 1972.  He was released from active duty and transferred to the U. S. Army Reserve (USAR) on 19 October 1975.  He enlisted in the Army National Guard on 6 December 1975.  He was discharged from the Army National Guard on 30 July 1991 (although the Retirement Points Accounting System (RPAS) apparently shows he was transferred on 18 October 1990) and was appointed a second lieutenant in the Army Nurse Corps, USAR shortly thereafter.

5.  The FSM completed 20 qualifying years for non-regular retirement on            28 December 1992.  There is no evidence of record to show he was issued a
20-year letter.  Although RPAS shows an address validity code of 3 (bad address), several documents in the FSM’s records – DD Form 398-2, National Agency Questionnaire dated 6 December 1990; NGB Form 22, Report of Separation and Record of Service dated 30 July 1991; assignment orders dated  11 September 1991; DD Form 93, Record of Emergency Data dated 18 October 1991; SGLV Form 8286, Servicemen’s Group Life Insurance Election and Certificate dated 29 January 1993 – all show the FSM lived at the same address where the applicant is currently residing.

6.  On 10 June 1993, a medical evaluation board (MEB) recommended the FSM be separated due to diagnoses of coronary artery disease and non-insulin dependent diabetes mellitus, both conditions existing prior to service (EPTS).  On 15 August 1993, the FSM appealed the MEB recommendation.  He noted that the coronary artery disease he had was 2-vessel in nature.  He remained asymtomatic with medical management and the medical management was submaximal.  The non-insulin dependent adult onset diabetes mellitus was controlled with diet and activity.  He knew there was a critical need for nurses and while he could not be mobilized to a hostile theater of operation he could perform duties within the Continental United States.

7.  On 20 January 1994, the FSM was discharged from the USAR apparently for medical reasons.  On 20 February 1996, he died of cardio-respiratory arrest.

8.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay. 

9.  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 occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

CONCLUSIONS:

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

2.  The evidence of record shows that the FSM should have received his 20-year letter in December 1992 or January 1993 but it was never issued.  The Board concludes that it is unlikely the Army National Guard would have issued his      20-year letter since he had been discharged from the Guard about 18 months prior to his becoming eligible to receive his letter.  Also, the evidence of record shows that he lived at the same address from several years prior to the date he should have received his letter until the date of his death so it is unlikely the letter would have been mailed to an incorrect address.

3.  The Board concludes that the FSM would have elected to enroll in the RCSBP had he received his 20-year letter.  The Board concludes that the FSM knew at the time he should have received his 20-year letter that he had diabetes mellitus and presumably the coronary artery disease.  Even if he did not know about the coronary artery disease, as a nurse he would have known that diabetes mellitus is frequently associated with artherosclerosis.  Despite his declarations in his MEB appeal, the Board concludes the FSM knew that such a disease could affect his life expectancy and presumes that he would have elected to enroll his spouse in the RCSBP for option C, full base amount at the earliest possible date.

4.  In view of the foregoing, the FSM’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:

     a.  showing that the FSM concerned was issued his notification of eligibility for retired pay at age 60 on 1 January 1993; and

     b.  showing that the FSM concerned enrolled in the RCSBP for spouse coverage, option C, full base amount on 1 January 1993.

2.  That the applicant be paid an annuity based upon the FSM’s RCSBP election retroactive to 20 February 1996, the date of his death.

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

BOARD VOTE:  

__jlp___  __bjl___  __owt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Jennifer L. Prater
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036897	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.01	
2.	137.02	
3.		
4.		
5.		
6.