PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           2 April 2002                   
	DOCKET NUMBER:   AR2001065873

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Curtis L. Greenway		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 he applied for retired pay and she be authorized the Reserve Component Survivor Benefit Plan (RCSBP) annuity.  

3.  The applicant states that the FSM unsuccessfully attempted to correct his retirement points.  He was verbally instructed not to apply for retired pay until the discrepancy was resolved.  He passed away prior to the correction of the retirement points.

4.  The FSM’s military records show he was born on 3 March 1937.  He initially entered the U. S. Army Reserve as a commissioned officer on 21 August 1959 and transferred to the Army National Guard in January 1961.  His notification of eligibility for retired pay (his 20-year letter) is not available but his Chronological Statement of Retirement Points, DARP Form 249-2-E, shows that he would have had 20 years of qualifying service as of retirement year ending date 20 August 1979.

5.  On 28 October 1979, the FSM completed a Survivor Benefit Plan Election Certificate, DD Form 1883, electing to participate in the RCSBP for spouse and children coverage, full base amount, option C.

6.  On 20 September 1986, the FSM attempted to have 13 active duty points added to retirement year ending date 20 August 1985.

7.  On 2 October 1999, the FSM died.  On 23 November 1999, the applicant was informed that the FSM had never applied for retired pay.

8.  On 9 January 2002, the U. S. Army Reserve Command determined that the evidence verified the FSM had 13 active duty points for retirement year ending date 20 August 1985 and would correct his points after the Board directed that it be done.

9.  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 does not occur before age 60, the RCSBP costs for options B and C are deducted from the retired pay.

10.  Title 10, U. S. Code, section 12731 provides that a person 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 has performed the last eight years of qualifying service in a Reserve Component.

CONCLUSIONS:

1.  There is no evidence of record to show the FSM ever applied for retired pay and he may have been advised not to do so until his retirement points were corrected.  His retirement points were not determined to be in error until after his death.

2.  The FSM honorably served the Army for over qualifying 20 years; he earned his retired pay.  His spouse helped him earn his retired pay.

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

RECOMMENDATION:  

1.  That the FSM’s records be corrected to add 13 active duty points to retirement year ending date 20 August 1985.

2.  That all of the Department of the Army records related to this case be corrected by showing the FSM applied for retired pay upon reaching age 60 on   3 March 1997 and designated his spouse as his beneficiary for unpaid retired pay.

3.  That the applicant be paid the SBP annuity retroactive to the date of the FSM’s death.

BOARD VOTE:  

__wtm___  __clg___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Walter T. Morrison
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001065873	
SUFFIX		
RECON		
DATE BOARDED	20020402	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.04	
2.	128.14	
3.	137.01	
4.		
5.		
6.