PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002070460

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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 and enrolled in the Survivor Benefit Plan (SBP) for spouse coverage.

3.  The applicant states the FSM was not briefed when he retired from the U. S. Army Reserve.

4.  The FSM’s military records show that he was born on 3 January 1940.  He and the applicant married in 1976.  After having had prior active service, he enlisted in the U. S. Army Reserve on 4 August 1979.  Records at the U. S. Army Reserve Personnel Command show he was issued his notification of eligibility for retired pay (his 20-year letter) on 28 March 1992.  He apparently did not enroll in the Reserve Component Survivor Benefit Plan (RCSBP).

5.  The FSM reached age 60 on 3 January 2000 and died on 11 February 2002.  He never applied for retired pay.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

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 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.

8.  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.

9.  In the processing of this application, an advisory opinion was obtained form the Transition and Separations Branch, U. S. Army Reserve Personnel Command.  That office contacted the FSM’s unit and confirmed that the FSM did not apply for retired pay because he believed his widow would receive, at the time of his death, all retired pay due him in one large lump sum.  A sergeant major in the unit confirmed that the FSM was unaware of the consequences of failing to apply for either the RCSBP, retired pay, or the SBP.  That office opined that the FSM’s unit failed to properly advise him, an infantryman, concerning benefits.

10.  A copy of the advisory opinion was provided to the applicant for comment.  She concurred in the advisory opinion.

CONCLUSIONS:

1.  The evidence of record shows the FSM failed to apply for retired pay in a timely manner.  It appears that his unit failed to properly counsel him on the consequences of not applying for retired pay.  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 September 1999, naming the applicant as his beneficiary for unpaid retired pay and electing to enroll in the SBP for spouse coverage, full base amount, and returned the application to the appropriate office where it was processed in a timely manner to be effective upon his reaching age 60 on 3 January 2000.

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

3.  That the applicant be paid the SBP annuity effective 11 February 2002, the date of the FSM’s death.

BOARD VOTE:  

__RVO__  __RTD__  __KWL__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2002070460	
SUFFIX		
RECON		
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.	137.01	
3.		
4.		
5.		
6.