PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 August 2002
	DOCKET NUMBER:   AR2002071790

	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. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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 records of her deceased spouse, a former service member (FSM), be corrected to show he applied for retired pay and that she be paid the Reserve Component Survivor Benefit Plan (RCSBP) annuity.

3.  The applicant states that the FSM had enrolled in the RCSBP.  Because he was sick, she did not know that he had not applied for retired pay.  He always intended for her to receive this benefit.

4.  The FSM’s military records show that he was born on 21 July 1941.  He had prior service in the Regular Air Force from August 1960 – December 1961.  He enlisted in the Army National Guard on 27 January 1975, transferred to the U. S. Army Reserve in November 1985, and transferred back to the Army National Guard in September 1991.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 24 March 1994.  On 17 May 1994, he enrolled in the RCSBP for spouse only coverage, full base amount, option C.

5.  On 21 July 2001, the FSM reached age 60.  He died on 15 December 2001 of lung cancer.  He never applied for 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.

7.  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, most likely because of his illness.  However, he honorably served the Army for over 20 years and earned his retired pay.  He had enrolled in the RCSBP and his spouse, the applicant, who helped him earn his retired pay, would have been entitled to receive the RCSBP annuity if he had applied for 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 May 2001, 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 21 July 2001.

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 15 December 2001, the date of the FSM’s death.

BOARD VOTE:  

__FNE__  __ TSK  _  __LEM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn  _
		   CHAIRPERSON

INDEX

CASE ID	AR2002071790	
SUFFIX		
RECON		
DATE BOARDED	2002/08/13	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.04	
2.		
3.		
4.		
5.		
6.