PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 April 2002                   
	DOCKET NUMBER:   AR2001061146

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Ms. Melinda M. Darby 		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 military records of her deceased spouse, a former service member (FSM), be corrected to show he applied for retired pay upon reaching age 60 and at that time elected to participate in the Survivor Benefit Plan (SBP) with the option of “spouse” coverage. 

3.  The applicant states, in effect, that after her husband’s death she found out that he had failed to file for his retirement and survivorship benefits.  In support of her application she submits a letter of explanation, dated 28 July 2001; the FSM’s Death Certificate; USAR orders, dated 31 December 1996; and his  Honorable Discharge Certificate, dated 14 June 1956.   

4.  The FSM’s military records show he was born on 4 February 1935.  Records show he enlisted in the New York Army National Guard on 1 June 1953 and was honorably discharged on 14 June 1956.  He later enlisted in the U.S. Army Reserve (USAR).  On 4 September 1990, he was notified that he had completed the required years of service to be eligible for retired pay upon application at age 60.  Apparently, the FSM did not enroll in the Reserve Component Survivor Benefit Plan (RCSBP) at this time.  On 4 February 1995, he reached age 60.  On 31 December 1996, the applicant was honorably discharged from the USAR.  On 14 April 2001, he died.      

5.  In the processing of this case, an advisory opinion was obtained from the Supervisor of the Retirements and Annuities, U.S. Army Reserve Personnel Command.  The opinion noted that the FSM completed 23 years qualifying years for retirement, that he was sent an application for retirement one year in advance of his 60th birth date, that he did not file an application for retirement and did not enroll in SBP.     

6.  The advisory opinion was provided to the applicant for review and possible rebuttal.  However, the applicant did not respond within the given timeframe.

7.  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 (and participate in SBP), 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.

CONCLUSIONS:

1.  The FSM was honorably discharged from the USAR on 31 December 1996 after completing 23 years of qualifying years for retirement.  However, there is no evidence of record that he ever applied for retired pay or enrollment in the SBP.

2.  The applicant honorably served the Army for over 20 years; he earned his retired pay.  His spouse helped him earn his retired pay.

3.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the FSM applied for retired pay upon reaching age 60 on 
4 February 1995 and at that time elected to participate in the SBP, full base amount, with “spouse” coverage, and returned the election form (DD Form 2656) to AR-PERSCOM for processing, thereby allowing the applicant to become an eligible annuitant upon his death on 14 April 2001.

BOARD VOTE:  

INW____  MMD___  JTM_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Irene N. Wheelwright
		        CHAIRPERSON

INDEX

CASE ID	AR2001061146	
SUFFIX		
RECON		
DATE BOARDED	20020416	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.1800	
2.		
3.		
4.		
5.		
6.