PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  19 June 2003
	DOCKET NUMBER:  AR2003087430

	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. John N. Slone		Chairperson	
	Mr. William D. Powers		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 completed 20 qualifying years of service for a non-Regular retirement and that she be entitled to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

3.  The applicant states that the FSM lacked 24 days (sic) reaching his eligibility date to receive retired pay at age 60.  He had earned 66 retirement points for his last retirement year.

4.  The FSM's military records show he was born on 17 February 1959.  He initially served in the Regular Army from 27 July 1977 through 24 July 1981 when he was released from active duty and transferred to the U. S. Army Reserve (USAR).  His DD Form 93 (Record of Emergency Data), dated 11 March 1981, shows he was married to the applicant at that time.  The FSM earned only membership points while he was in the USAR (for retirement years beginning   25 July 1981 and ending 21 April 1982 and beginning 22 April 1982 and ending 21 April 1983).

5.  The FSM was discharged from the U. S. Army Reserve on 21 April 1983.  He enlisted in the Army National Guard on 27 July 1987 and subsequently earned 50 or more retirement points for each retirement year thereafter.

6.  The FSM died of a massive heart attack on 2 June 2002.  His Army National Guard Retirement Points History Statement shows he had completed 19 years, 10 months, and 6 days of qualifying service for a non-Regular retirement as of that date.  He had earned 66 retirement points for retirement year beginning     27 July 2001 and ending 2 June 2002.

7.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  

8.  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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60.

9.  Title 10, U. S. Code, section 1448(f)(1)(B) states that the Secretary concerned shall pay an RCSBP 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 he receives his 20-year letter.

CONCLUSIONS:

1.  The Board notes that the FSM was actively serving with the Army National Guard when he died on 2 June 2002 of a massive heart attack.  Unfortunately, he lacked about 1 month and 24 days of reaching 20 qualifying years of service for a non-Regular retirement.  The statute requires a full 20 qualifying years be completed to be eligible for retired pay at age 60.  

2.  However, the Board notes that the FSM had already earned 66 retirement points the retirement year ending with his death.  Therefore, the Board  concludes that it would be equitable to correct his records to show he completed a full 20 qualifying years for retired pay.  This can be done by redistributing excess retirement points to show he earned 50 retirement points during his retirement year ending 21 April 1983.

3.  The above correction would entitle the FSM to receipt of his notification of eligibility to receive retired pay at age 60 (his 20-year letter).  Since it is impossible for the FSM to make an RCSBP election within the 90-day timeframe provided for by law, the applicant would automatically be entitled to the RCSBP annuity.  

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:

     a.  redistributing the FSM's excess retirement points to provide him with a qualifying year of service for retirement year ending 21 April 1983; and

     b.  issuing him a 20-year letter to show he is entitled to Reserve retired benefits at age 60 as a result of the above correction.

2.  That as a result of the above corrections, the applicant is entitled to receipt of the FSM's unpaid retired pay and to the RCSBP annuity.

BOARD VOTE:  

__js___  ___wp___  __lm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___John N. Slone____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087430	
SUFFIX		
RECON		
DATE BOARDED	20030619	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.	135.00	
3.		
4.		
5.		
6.