PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR1999033039

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 paid the back retired pay due her deceased spouse, a former service member (FSM).

3.  The applicant states that the FSM turned 60 on 23 September 1996 but his birth date was incorrectly listed as 23 September 1941.  He died on                   28 November 1998 before the error was noted.

4.  The FSM’s military records show that he had had prior enlisted service in the active Army, the Army National Guard and the U. S. Army Reserve (USAR) when he was appointed a commissioned officer in the USAR.  All documents on file, to include his application for identification card and his Personnel Qualification Record, shows his date of birth as 23 September 1941.

5.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 15 April 1994.  He enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) at this time for option B.

6.  The FSM died on 29 November 1998.  Apparently while dealing with the FSM’s estate, the applicant obtained a certified transcript of birth on him and discovered he had been born in 1936, not 1941.  

7.  On 24 February 1999, the Army Reserve Personnel Command posthumously placed the FSM on the retired list effective 23 September 1996.

8.  Public Law 95-397, the Reserve Component SBP (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. 

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.

2.  It appears that throughout the FSM’s career he and the Army thought that his birth date was 23 September 1941, not 23 September 1936 as it actually was.  When the FSM’s birth date was confirmed as 23 September 1936, the Army Reserve Personnel Command posthumously placed him on the retired list effective 23 September 1996.

3.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s records as recommended below.
RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by paying to the applicant any and all back retired pay that would have been due the FSM from 23 September 1996 through 29 November 1998.

BOARD VOTE:  

__rvo___  __sk____  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999033039	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.	137.02	
3.		
4.		
5.		
6.