PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 September 2001                   
	DOCKET NUMBER:   AR2001057995

	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:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 the records of his deceased brother, a former service member (FSM), be corrected to show he applied for retired pay and that he named him, the applicant, as the beneficiary for all retired pay due and as his Survivor Benefit Plan (SBP) beneficiary.

3.  The applicant states, in effect, that he is the FSM’s next of kin and executor of his estate.  

4.  The FSM’s military records show that he was born on 8 January 1932.  After having had prior active duty, he entered the U. S. Army Reserve in 1955.  His Record of Emergency Data, DA Form 41, dated 16 November 1975 shows that the FSM had two brothers, was not married, and had no children.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 11 January 1978.

5.  The FSM would have been eligible for retired pay on 8 January 1992 and been eligible to apply for retired pay approximately 6 months prior to that date.  On an unknown date the FSM requested assistance from his Congressman in obtaining his retired pay.  Apparently, he had applied for retired pay and been turned down because of a problem with the coding of his retirement points.        The Congressman requested information from the Army Reserve Personnel Command (AR-PERSCOM) on 24 September 1998.  By letter dated                  25 November 1998, AR-PERSCOM informed the Congressman that they would exam the FSM’s records and determine if he was eligible for retired pay.  If so, an application for retired pay would be sent to him.  

6.  The FSM died on 1 December 1998.  His death certificate shows that he never married.

7.  On 15 December 1998, AR-PERSCOM informed the FSM’s Congressman that the FSM had been found to be eligible for retired pay and an application for retired pay was sent to him.

8.  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.  Elections are made by category – spouse, spouse and child, children only, former spouse, former spouse and child, and insurable interest.  Insurable interest is the most expensive.

9.  Public Law 95-397, the Reserve Component SBP, 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.  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.  An Open Season was established from 1 October 1978 – 31 March 1980.

10.  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.  The Data for Payment of Retired Personnel, DD Form 2656, includes an SBP election section and a section for designation of beneficiaries for unpaid retired pay.  If a beneficiary for unpaid retired pay is not designated, the amount due will be paid to the surviving person highest on the following list:  (1) spouse; (2) children and their descendants; (3) parents; (4) legal representative of the estate; and (5) person(s) entitled under the law of domicile.

11.  In the processing of this case, an advisory opinion was obtained from AR-PERSCOM.  AR-PERSCOM recommended that all of the applicant’s petition be approved.  

12.  A copy of the advisory opinion was provided to the applicant for comment.  He concurred with the advisory opinion.

CONCLUSIONS:

1.  The FSM was sent his 20-year letter in January 1978 and there is some evidence to show that he did apply for retired pay, although the date he first applied cannot be determined.  Due to a Government error, he was denied retired pay.  The Government did not discover its error until after the FSM died.

2.  The Board concludes that it would be appropriate to show that the FSM applied for retired pay on 1 December 1991 and that his application was received and processed in a timely manner.  It would be appropriate to pay all retired pay due in arrears to the FSM’s estate.

3.  There is no evidence to show that the FSM ever intended to provide SBP coverage for the applicant.  Absent such evidence, it would not be appropriate to show the FSM elected SBP coverage for the applicant as an insurable interest.

4.  Since there is no evidence to show whether or not the FSM had any other living relatives, it would be appropriate to show that he did not designate a beneficiary for his unpaid retired pay.  If he had no living relatives in the established line of succession, this would allow any unpaid retired pay due to be paid into his estate.

5.  In view of the foregoing, the applicant’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 showing that the FSM applied for retired pay on 1 December 1991, that he did not designate a beneficiary for unpaid retired pay and elected not to participate in the SBP, and that his application was received and processed by the appropriate offices in a timely manner. 

2.  That all retired pay in arrears and any due unpaid retired pay be paid to the FSM’s estate.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__lls___  __mhm___  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001057995	
SUFFIX		
RECON		
DATE BOARDED	20010906	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.	137.00	
3.		
4.		
5.		
6.