PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 March 2001                   
	DOCKET NUMBER:   AR2000047968

	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. Shirley L. Powell		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 applicants, two former spouses of the deceased former service member (FSM), request that the FSM’s records be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for dependent children coverage, option C, full base amount.

3.  The applicants state that the FSM was discharged from the Mississippi Army National Guard with 20 years of qualifying service for receipt of retired pay at age 60 but died before he was issued his 20-year letter.

4.  The FSM’s military records are not available.  Information contained herein was obtained from alternate sources.  

5.  The FSM was born on 24 August 1955.  He married M___ on 23 August 1975.  He enlisted in the U. S. Army Reserve on 16 October 1976.  He and M___ had three children, born on 21 February 1976, 26 April 1977, and 26 November 1983, respectively.  He and M___ divorced on 5 December 1989.  The divorce decree does not mention the SBP.

6.  The FSM enlisted in the Army National Guard on 21 March 1992.  He and
S___ married on 8 August 1992.  He and S___ had two children, born on 5 July 1993 and 21 July 1995, respectively.  

7.  The applicant was discharged from the Army National Guard on 15 October 1996.  At that time it appeared from his Army National Guard Retirement Points History Statement that he had only 19 years of qualifying service for retirement, his retirement year ending (RYE) 15 October 1988 not being credited as a qualifying year.

8.  On 16 April 1998, the FSM and S___ divorced.  The divorce decree does not mention the SBP.

9.  On 26 August 2000, the FSM died due to injuries incurred in a motor vehicle accident.

10.  After the FSM’s death, the Mississippi Army National Guard received verification from the Army Reserve Personnel Command (AR-PERSCOM) that the FSM did earn sufficient retirement points to attain a qualifying year of service for RYE 15 October 1988.  Upon recomputation, the Army National Guard Retirement Points History Statement prepared 21 September 2000 showed the FSM completed 20 qualifying years of service for retired pay.  The Mississippi Army National Guard then issued the FSM a notification of eligibility for retired pay at age 60 (his 20-year letter) on 21 September 2000.

11. The Mississippi Army National Guard provided a statement in support of the two applications.  They stated that at the time of the FSM’s separation they assumed that he had 20 years of qualifying service for retired pay and that the retirement point accounting system would issue his 20-year letter upon his separation.  The error concerning RYE 15 October 1988 was not detected until after his death.  Once AR-PERSCOM verified the missing retirement points earned during that RYE, the points were added to their retirement point accounting system and his 20-year letter was generated.

12.  Public Law 92-245, 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 term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.  Surviving dependent children are paid the annuity in equal shares.

13.  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.

CONCLUSIONS:

1.  The evidence of record shows that a Government error occurred in this case that has caused an injustice to the FSM’s families.

2.  Had all the FSM’s retirement points been verified at the proper time, he would have been eligible to receive his 20-year letter in late 1996.  At that time he did have dependent children including a child not yet two years old.  The Board concludes that it would have been reasonable for the FSM to have enrolled in the RCSBP for dependent children coverage, option C, full base amount to financially protect his young children had he been given the opportunity to do so.

3.  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 received his notification of eligibility for retired pay at age 60 on 1 November 1996; and 

     b.  showing that the FSM enrolled in the RCSBP on 1 December 1996 for dependent children only coverage, option C, full base amount.

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

3.  That the eligible dependent children from both marriages be paid an annuity based upon the FSM’s election to participate in the RCSBP retroactive to          26 August 2000, the date of his death.

BOARD VOTE:  

__slp___  __jpi___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000047968	
SUFFIX		
RECON		
DATE BOARDED	20010322	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.