PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 May 2002                   
	DOCKET NUMBER:   AR2001066238

	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. Samuel A. Crumpler		Chairperson	
	Mr. Kenneth W. Lapin		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 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 the FSM enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) in 1992 but because he did not apply for retired pay she is not eligible to receive the annuity.  He did not apply due to major health problems (heart attack and a quadruple bypass, gallbladder surgery) and he was tied up with business problems.

4.  The FSM’s military records show that he was born on 25 October 1935.  He enlisted in the U. S. Army Reserve (USAR) in 1955.  He was commissioned in the USAR in 1957.  He and the applicant married on 10 September 1960.  

5.  The FSM’s notification of eligibility for retired pay at age 60 (20-year letter) is dated 27 April 1992.  

6.  On 6 November 1992, during an Open Season, the FSM completed a Survivor Benefit Plan Election Certificate, DD Form 1883, enrolling in the RCSBP for spouse only coverage, full base amount, option B.  

7.  The FSM turned age 60 on 25 October 1995.  He did not apply for retirement. He died on 29 September 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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.

9.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991.  Public Law 101-510, enacted              5 November 1990, delayed the start of the Open Season to 1 April 1992 through 31 March 1993.

10.  Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

CONCLUSIONS:

1.  The evidence of record shows the FSM enrolled in the RCSBP during an Open Season but then failed to apply for retired pay in a timely manner, preventing the applicant from receiving the SBP annuity when he died.  However, he honorably served the Army for over 20 years and earned his retired pay.  His spouse, the applicant, helped him earn his retired pay.

2.  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 September 1995, naming the applicant as his beneficiary for unpaid retired pay, and returned the application to the appropriate office in a timely manner where it was processed in a timely manner to be effective upon his reaching age 60 on 25 October 1995.

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

3.  That the applicant be paid the RCSBP annuity effective 29 September 2001, the date of the FSM’s death.

BOARD VOTE:  

__sac___  __kwl___  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Samuel A. Crumpler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001066238	
SUFFIX		
RECON		
DATE BOARDED	20020507	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.