PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           20 June 2000                   
	DOCKET NUMBER:   AR1999031171

	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. Kenneth H. Aucock            		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		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 late husband show that he was transferred to the Retired Reserve in 1976 with 20 qualifying years of service for retired pay when he reached age 60, and that he elected to participate in the Survivor Benefit Plan (SBP). 

3.  On behalf of the applicant, the retirement points accounting NCO of the Massachusetts Army National Guard (MAARNG) stated that the former service member (FSM) believed that he had 20 qualifying years of service with the MAARNG and retired, when in fact he had been discharged.  When notified of his death by the applicant, that NCO recalculated the retirement points of the FSM, verified that he did have 20 qualifying years for retirement, and issued a 20 year letter (Notification of Eligibility for Retired Pay at Age 60).  The NCO, in effect, supports the widow of the FSM, requesting that she receive the retired pay of the FSM retroactive from the date he reached age 60 until the date of his death; and that she receive an immediate SBP annuity retroactive from the date of his death. 

4.  The military records of the FSM show that his date of birth was 27 April 1938, and that he was discharged from the MAARNG on 17 May 1976.  He had 20 years of service for pay purposes. 

5.  The FSM passed away on 8 July 1999.  His death certificate shows that the applicant, his wife, was the informant of his death.

6.	On 21 July 1999 the FSM was issued a 20 year letter.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election made by the member was irrevocable.  Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the Survivor Benefit Plan to members and former members of the Reserve Components who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.

8.  Members of the Army Reserve could elect one of three options regarding their coverage.  Option A enabled members to decline to make an election at the time of transfer to the Retired Reserve with the understanding they would remain eligible to make an election for coverage at age 60.  Option B allowed members to provide an annuity beginning on their 60th birthday should he die before that date or on the day after the date of death if he died after age 60.  Option C provides an immediate annuity beginning on the day after the date of death whether before or after age 60. 

CONCLUSIONS:

1.  The FSM had 20 qualifying years of service for retired pay and should have received retired pay when he reached age 60.  His next of kin is entitled to that pay.
2.  The FSM obviously had not the opportunity to elect participation in the SBP, and whether or not he would have chosen to do so is speculative.  This Board believes, however, that the benefit of the doubt in this case should go to the applicant, that her deceased husband, a senior NCO, would have elected to participate in the SBP, and would have enrolled for the full base amount providing for an immediate annuity to his spouse.  Consequently, the next of kin should receive an annuity from the SBP retroactive to 9 July 1999, the day after the date of death of the FSM, minus the premiums that he would have had to pay from the date he reached age 60 until his death.  

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.  granting the FSM retired pay at age 60.  That pay should go to his next of kin; and 
 
     b.  showing that the FSM elected to participate in the SBP for spouse only coverage, option C, for the full base amount, and paying the next of kin the annuity from the SBP retroactive from 9 July 1999, the day after the date of the death of the FSM, minus any premiums that he would have paid from the date he reached age 60 until the date of his death.  

BOARD VOTE:  

___ewl__  ___jea___  ___vbc__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999031171	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000620	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  346	128.00	
2.	137.00	
3.		
4.		
5.		
6.