PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 April 2002                   
	DOCKET NUMBER:   AR2002067530

	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. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely		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 that she be paid the Reserve Component Survivor Benefit Plan (RCSBP) annuity.

3.  The applicant states that she is sure the FSM did not apply for his retirement benefits at age 60 because he was waiting until he actually retired at age 65.  In May of 2001, he was diagnosed with cancer.  He tried to apply for retired pay but died before the paperwork could be processed.  

4.  The FSM’s military records show he was born on.  He and the applicant married on 24 August 1962.  After having had prior service in the Army National Guard, he reenlisted in the Army National Guard on 31 January 1972.  His notification of eligibility to receive retired pay at age 60 is dated March 1986.  On 13 May 1986, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883, and enrolled in the RCSBP for spouse only coverage, full base amount, option C.  On 7 September 1999, he reached age 60.  On      10 November 2001, he died.

5.  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.

6.  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 failed to apply for retired pay in a timely manner.  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 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 the FSM applied for retired pay on 1 August 1989, 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 7 September 1989.

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 10 November 2001, the date of the FSM’s death.

BOARD VOTE:  

__fne___  __bje___  __reb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002067530	
SUFFIX		
RECON		
DATE BOARDED	20020418	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.	128.18	
3.		
4.		
5.		
6.