PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002076173

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and that he applied for retired pay.  She states that the FSM never received his retirement packet.  "They" did not have a good address for him.

3.  The FSM’s military records from his Army National Guard service are not available.  Information contained herein was obtained from alternate sources.

4.  The FSM was born on 13 January 1942.  After having had prior service, he enlisted in the Army National Guard in January 1982.  His notification of eligibility for retired pay (his 20-year letter) is dated 11 December 2001.  He died on 5 March 2002.  He never applied for retired pay.

5.  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 member’s retired pay (costs for option C being more expensive).  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

6.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been made after 1 January 2001.

7.  Title 10, U. S. Code, section 1448(f)(1)(B) states that the Secretary concerned shall pay an RCSBP annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies during the 90-day period beginning on the date he receives his 20-year letter.

8.  Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age and has performed at least 20 years of qualifying service.

CONCLUSIONS:

1.  It appears that the circumstances of this case have worked an injustice upon the applicant.
2.  The FSM's 20-year letter is dated 11 December 2001.  Even if it had been sent to the correct address (and it was the FSM's responsibility to keep his address up-to-date at all times), he had at the soonest until 11 March 2002 to make an RCSBP election.  He died prior to the expiration of that 90-day period; therefore, the applicant is entitled to receive the annuity as a matter of law.  In addition, even if he had wished to elect to defer his election until reaching age 60 (in this case, only one month later), the applicant's concurrence would have been required.  In this case, since the FSM would have turned age 60 just over one month after the date of his 20-year letter, option B appears to be the most reasonable, cost-effective option he would have elected.

3.  It would be equitable to show the FSM applied for retired pay.  He earned his retired pay but his 20-year letter is dated just one month prior to the date he would have turned age 60 and, for whatever reason, it appears he never received it.  Correcting his records to show he applied for retired pay would allow the applicant to receive his unpaid retired pay.

4.  In view of the foregoing, the FSM’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 showing that the FSM elected to participate in the RCSBP for spouse coverage, option B, full base amount on 1 January 2002 and that he applied for retired pay at the same time.

2.  That the applicant be paid the RCSBP annuity and the FSM's unpaid retired pay as a result of the above corrections.

BOARD VOTE:  

__RJW__  __RWA__  __JTM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___   Raymond J. Wagner     _
		           CHAIRPERSON

INDEX

CASE ID	AR2002076173	
SUFFIX		
RECON		
DATE BOARDED	2002/10/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	FULL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.