PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 October 2003     
	DOCKET NUMBER:  AR2003087263

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichron		Chairperson	
	Ms. Shirley Powell		Member	
	Mr. Robert Duecaster		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 she be determined to be eligible for receipt of a Reserve Component Survivor Benefit Plan (RCSBP) annuity.  

3.  The applicant states that the FSM served in the Indiana Army National Guard for 19 years, 11 months, and 23 days.  

4.  The FSM’s military records show that he was born on 6 January 1964.  After having had prior service in the Regular Army and U. S. Army Reserve, he enlisted in the Army National Guard on 28 August 1992.  He and the applicant married on 25 June 1999.  As of retirement year ending date 6 October 2001, he had completed 19 years of qualifying service for retired pay.

5.  The FSM's death certificate shows he was in a motorcycle accident at 6:00 p.m. on 29 September 2002 and suffered craniocerebral injuries.  He was pronounced dead at 9:20 p.m. on 30 September 2002.  As of that date, he had completed 19 years, 11 months, and 23 days of qualifying service for retired pay. 

6.  On 1 October 2002, the State of Indiana Military Department issued the FSM a notification of eligibility for retired pay at age 60 with 15 years of service (his 15-year letter) due to medical disqualification.

7.  Military Department of Indiana Orders 274-059 dated 1 October 2002 transferred the FSM to the Retired Reserve.

8.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if the member has completed at least 15 and less than 20 years of service.

9.  Section 12731(d) of Title 10, U. S. Code, states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.    

10.  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 occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

11.  Title 10, U. S. Code, section 1448(f)(1)(B) states that the Secretary concerned shall pay an annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies during the 90-day period beginning on the date the person receives notification under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve component retired pay (if the person had not already made such an election).

CONCLUSIONS:

1.  The Board notes that the FSM was a member of the Indiana Army National Guard in an active status when he was critically injured in a motorcycle accident on 29 September 2002.  On that date, he had completed slightly less than          20 years of qualifying service for retired pay.

2.  The evidence of record shows the State of Indiana determined that the FSM, based upon his injuries, was medically disqualified from continued service in the Selected Reserve and issued him a 15-year letter and transferred him to the Retired Reserve.  Unfortunately, the 15-year letter and orders were not issued until 1 October 2002, one day after the FSM died. 

3.  The Board concludes that it would be appropriate to correct the records to show the FSM's 15-year letter and the orders transferring him to the Retired Reserve were issued on 29 September 2002.  This would entitle the applicant to an RCSBP annuity under the provisions of Title 10, U. S. Code, section 1448(f)(1)(B).

4.  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's 15-year letter and the orders transferring him to the Retired Reserve were issued on 29 September 2002.

2.  That as a result of the above correction, the applicant be paid the RCSBP annuity under the provisions of Title 10, U. S. Code, section 1448(f)(1)(B).

BOARD VOTE:  

__fne___  __sp____  __rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087263	
SUFFIX		
RECON		
DATE BOARDED	20031007	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.