PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2002068765

	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. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 that the FSM was waiting for the Government to send him the paperwork to start his retired pay.  He knew the Government works slowly and assumed the paperwork was just delayed.  She provides a note from the FSM’s doctor in which the doctor indicates the FSM was totally disabled and unable to travel after 1 January 2001 due to low oxygen levels attributable to his lung cancer.

4.  The FSM’s military records show that he was born on 16 February 1941.  He enlisted in the Army National Guard on 5 August 1963.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 16 January 1984.  On 12 February 1984, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883.  He elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage, full base amount, option C.

5.  The FSM became eligible to received retired pay on 16 February 2001.  He died on 8 April 2001.  He apparently never applied for retired pay.  The Defense Finance and Accounting  Service – Cleveland Center verified that he never received retired pay.

6.  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.  Option B and C participants do not make a new SBP election at age 60; it automatically rolls over into SBP coverage.  If RCSBP Option B or C is 
elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

7.  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 elected RCSBP spouse only coverage, option C at the time he received his 20-year letter.  His RCSBP coverage would normally have rolled over into the SBP upon his reaching age 60 on 16 February 2001 and his being in receipt of retired pay.  RCSBP and SBP costs would then have been taken out of his retired pay.

2.  However, the evidence of record shows the FSM never applied for retired pay. The applicant’s explanation as to why the FSM delayed applying for retired pay is reasonable, particularly given his medical condition at the time he should have been concerned about applying for retired pay.  The Board concludes that it is an injustice to deny the applicant an SBP annuity that the FSM properly elected solely because he failed to apply for 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 that the FSM applied for retired pay on 1 December 2000 to become effective 16 February 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 entitled to an SBP annuity based on the above correction effective 8 April 2001, the date of the FSM’s death.

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

BOARD VOTE:  

__mdm___  __le____  __kyf___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002068765	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.