PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 November 2001                   
	DOCKET NUMBER:   AR2001060258

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Mr. William D. Powers		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 her deceased spouse, a former service member (FSM), be corrected to show he applied for retired pay.

3.  The applicant states that the FSM turned 60 years of age on 11 June 2001 and died on 23 June 2001 of medical complications.  Because of his medical treatment the FSM was not mentally or physically competent to complete the application for retired pay and survivors benefits.  

4.  The FSM’s military records show he was born on 11 June 1941.  After having had prior active service, he enlisted in the U. S. Army Reserve on 12 May 1973.  His notification for eligibility for retired pay at age 60 (his 20-year letter) is dated 28 December 1990.  On 15 April 1991, the FSM enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage, option C, full base amount.

5.  Records at the U. S. Army Reserve Personnel Command (AR-PERSCOM) indicate the FSM was mailed a retirement application packet on 8 June 1999 but they have no record of it being returned either as undeliverable or completed for certification.  On 29 December 1999, the FSM was diagnosed with multiple myeloma.  Treatment included prolonged chemotherapy.

6.  The FSM died on 23 June 2001.

7.  Conversation with the Defense Finance and Accounting Service – Denver Center (DFAS-DE) on 9 November 2001 indicates that they now have all the documents required to process the applicant’s application for the RCSBP annuity and hope to have her initial payment out in November 2001.

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.  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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay. Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at 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.

CONCLUSIONS:

1.  The evidence of record shows that the FSM properly elected RCSBP spouse-only coverage, option C at the time he received his 20-year letter.  There was no need for him to make another election when he turned age 60.  He died less than two weeks after reaching age 60 and eligibility to draw retired pay.  Records at DFAS indicate that the applicant’s application for the RCSBP annuity is currently being processed.

2.  The evidence of record shows that the FSM never applied for retired pay.  Although records at AR-PERSCOM show that he was mailed his retired pay application two years prior to his reaching age 60, there was no requirement that he submit the application immediately.  Unfortunately, the FSM was diagnosed with cancer not long thereafter.  The Board concludes that the severity of his medical condition and its treatment hampered his capability to apply for retired pay as he drew closer to attaining age 60.  The Board concludes that as a matter of equity the records should be corrected to show the FSM applied for retired pay and made the applicant the beneficiary for unpaid retired pay. 

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 showing the FSM applied for retired pay on 1 January 2000 to become effective 11 June 2001.

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

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

BOARD VOTE:  

__rvo___  __jpi___  __wdp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060258	
SUFFIX		
RECON		
DATE BOARDED	20011129	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.