PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           31 JANUARY 2002
	DOCKET NUMBER:   AR2001058399

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Ms. Regan K. Smith		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 deceased spouse, a former service member (FSM), be corrected to show that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).  The applicant states that the FSM did not receive his 20-year letter (notification of eligibility for retired pay at age 60) before he died and as such was unable to enroll in the RCSBP.

3.  The FSM’s military records show that he was born on 18 April 1949.  He enlisted in the Regular Army on 17 April 1969.  He transferred to the U. S. Army Reserve in April 1971, and was ordered to active duty on 1 August 1983 for an indefinite period.  He was an AGR (Active Guard Reserve) soldier attached to the 318th CS Maintenance Company, State College, Pennsylvania at the time of his death on 6 November 1995.  He and the applicant married on 3 April 1976.  The FSM’s notification of eligibility for retired pay at age 60 is dated 5 August 1998.  

4.  Information received from a representative of the Defense Finance and Accounting Service (DFAS) shows that the FSM completed 20 qualifying years for retirement as of May 1995.  However, there is no evidence of record to show he was issued a 20-year letter until 5 August 1998.

5.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.
It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60.

6.  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 provided 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 does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Option B and C participants do not make a new SBP election at age 60; it automatically rolls over into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.  

CONCLUSIONS:

1.  The evidence of record shows that the FSM should have received his 20-year letter in May 1995, but it was not issued until August 1998, more than 3 years later and nearly 3 years after his death.  
2.  The Board concludes that a Government error and injustice occurred in this case.  Had the applicant received his 20-year letter in a timely manner it is likely that he would have received it by 1 June 1995, and would have made his election within 30 days.

3.  The Board concludes that it would be reasonable to assume that the FSM would have elected to enroll in the RCSBP, and that he would have elected option C, full base amount at the earliest possible date .

4.  In view of the foregoing, the applicant’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.  showing that the FSM concerned was issued his notification of eligibility for retired pay at age 60 on 1 June 1995; and 

	b.  showing that the FSM concerned enrolled in the RCSBP for spouse and children coverage, option C, full base amount on 1 July 1995.

2.  That the applicant be paid an annuity based upon the FSM’s RCSBP selection retroactive to 6 November 1995, the date of his death.

3.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any RCSBP cost due.

BOARD VOTE:  

__RVO__  __EJA_  _  __RKS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor__
		        CHAIRPERSON

INDEX

CASE ID	AR2001058399	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020131	
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.	137.00	
2.		
3.		
4.		
5.		
6.