PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 March 2000                   
	DOCKET NUMBER:   AR1999033300

	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. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		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 her family be granted a Survivor Benefit Plan (SBP) annuity from her deceased spouse, a former service member (FSM).

3.  The applicant states when the FSM died on 12 November 1998, leaving behind two children ages 28 months and 19 months, he was only 14 days short of qualifying for retired pay.  He was loyal to the Army and the Federal Government.  At one time he was attached to the Secret Service protecting President Reagan as an explosive ordnance technician.  His final work was with the Federal Bureau of Investigation (FBI).  While with the FBI he acted as liaison with Southern Command and helped them deal with the anti-Castro movement.

4.  The FSM’s military records show that he enlisted in the Delayed Entry Program on 28 November 1978 and in the Regular Army on 20 July 1979.  After his release from active duty he immediately enlisted in the active reserve.  He committed suicide on 12 November 1998 after completing 19 years, 11 months and 16 days of qualifying service.

5.  Title 10, U. S. Code, section 12731 provides that a non-regular service member 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, having completed the service requirement during the period beginning on            1 October 1994 and ending on 30 September 1999, shall have performed the last six years of qualifying service while a member of a reserve component.

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

CONCLUSIONS:

1.  The Board concludes that while there is no evidence of Government error in this case there is an injustice.  

2.  The Board concludes that the FSM was not mentally responsible at the time of his death, just 2 weeks prior to when he would have met the eligibility criteria for retired pay at age 60, and so had made a decision that put his family’s welfare in jeopardy.

3.  In view of the foregoing and as an exception to policy in the interest of compassion, it would be in the interest of justice to correct the FSM’s records 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 enlisted in the Delayed Entry Program on     11 November 1978.

2.  That on 11 November 1998 the FSM was notified that he was eligible for retired pay at age 60 (received his 20-year letter).

3.  That on 11 November 1998 the FSM elected to enroll in the RCSBP for full base amount, spouse and children coverage, option C.

4.  That the applicant be paid an SBP annuity effective 12 November 1998, the date of the FSM’s death.

BOARD VOTE:  

__rgh___  __mdm___  __jps___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Robert G. Hinkle
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999033300	
SUFFIX		
RECON		
DATE BOARDED	20000329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.	137.02	
3.		
4.		
5.		
6.