PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           25 July 2000                  
	DOCKET NUMBER:   AR2000039118

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 an annuity under the survivor benefit plan (SBP). 

3.  The applicant states that her late husband, a former serviceman (FSM), was determined to be medically unfit for duty because of cancer, and he should have been discharged prior to his death.  He would then have received the notification of eligibility to receive retired pay letter prior to his death, and would have completed a SBP election.  Because of his unit’s neglect, the notification was not prepared until after his death.

4.  The military records of the FSM show that he was born on 18 January 1942, and was married to the applicant at the time of his death, on 19 July 1999.  A signed, but incomplete DD Form 1883 (Survivor Benefit Plan Election Certificate), shows that the FSM intended to elect to provide an annuity based on the full amount of his retired pay, and to elect to provide an immediate annuity beginning on the date after the date of his death.

5.  A certificate of marriage shows that the FSM was married to the applicant on 4 January 1963.  A certificate of death shows that the FSM passed away on       19 July 1999 and that the applicant was the surviving spouse.

6.  An Army National Guard retirement points history statement shows that the FSM had 19 years of qualifying service for retired pay at age 60, at the time of his death.

7.  On 20 July 1999 the Tennessee Army National Guard discharged the FSM from the Army National Guard and transferred him to the Army Control Group (Retired Reserve) effective on 19 July 1999.  The order effecting that action shows that the FSM was eligible for retired pay at age 60 in accordance with Public Law 103-337, section 517.
 
8.  On 21 July 1999 the Tennessee Army National Guard issued the deceased FSM a notification of eligibility for retired pay with 15 years of service.  That notification stated that his eligibility for retired pay at age 60 was in accordance with the provisions of the National Defense Authorization Act for Fiscal Year 1995, Public Law 103-337, section 517.  It indicated that he had completed at least 15 years of qualifying service, that he no longer met the qualification for membership in the Selected Reserve because of his physical disability, that he had performed the last six years of qualifying service in a Reserve component, and that he had requested transfer to the Retired Reserve. 

9.  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.  The election made by the member was irrevocable.  Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the Survivor Benefit Plan to members and former members of the Reserve Components who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.

10.  Members of the Army Reserve could elect one of three options regarding their coverage.  Option A enabled a member to decline to make an election at the time of transfer to the Retired Reserve with the understanding he would remain eligible to make an election for coverage at age 60.  Option B allowed a member to provide an annuity beginning on his 60th birthday should he die before that date or on the day after the date of death if he died after age 60.  Option C provides an immediate annuity beginning on the day after the date of death whether before or after age 60. 

11.  Title 10 of the U.S. Code, chapter 73, subchapter II, provides for and prescribes the SBP.  Section 1447 defines a full amount under Reserve component annuity and states that in the case of a person who would have become eligible for reserve component retired pay but for the fact that he died before becoming 60 years of age, such term means the amount of monthly retired pay for which the person would have been eligible-if he had been 60 years of age on the date of his death, for purposes of an annuity to become effective on the date after his death in accordance with the designation made under section 1448(e) of this title. 

12.  Section 1448 provides the general rules for participation in the SPB, and states that persons entitled to retired pay and persons who would be eligible for reserve component retired pay but for the fact that they are under 60 years of age, are eligible to participate in the plan.  Section 1448(e) provides for the designation of the reserve component annuity and states that the person making an election shall designate whether, in the event he dies before becoming 60 years of age, the annuity provided shall become effective on the day after the date of his death; or the 60th anniversary of his birth.  

13.  Section 1448(f)(1) states that the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve component retired pay.

14.  The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a© (now codified under section 12731a).  The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and                              30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.
CONCLUSIONS:

1.  The FSM was apparently discharged from the Army National Guard and transferred to the Retired Reserve because of his disability.  He had over            15 years of qualifying service for retired pay at age 60 and was therefore eligible to elect participation in the SBP.  

2.  The FSM obviously did not have the opportunity to elect participation in the SBP.  The DD Form 1883, which the FSM signed, indicates that he intended to participate in the SPB for the full amount with an annuity provided to his surviving spouse effective on the date after his death.  This Board believes that he would have done so.  Nevertheless, the FSM died before being notified that he was eligible to receive reserve component retired pay at age 60, the notification letter dated two days after his death.  Under the provisions of law, an annuity should be paid to the surviving spouse of the FSM.  Consequently, the next of kin should receive an annuity from the SBP retroactive to 20 July 1999, the day after the date of death of the FSM.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the FSM elected to participate in the SBP for spouse only coverage, option C, for the full base amount, and paying the next of kin the annuity from the SBP retroactive from 20 July 1999, the day after the date of the death of the FSM,

BOARD VOTE:  

___tsk___  ___jhk__  ___sk___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039118	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  346	137.01	
2.		
3.		
4.		
5.		
6.