| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. Mark D. Manning | Chairperson | |
| Mr. Lester Echols | Member | |
| Ms. Gail J. Wire | Member |
APPLICANT REQUESTS: In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he applied for retired pay and that his retired pay be paid to his estate.
APPLICANT STATES: The applicant apparently defers to counsel.
COUNSEL CONTENDS: That the applicant is not requesting to collect monies under the Survivor Benefit Plan (SBP) for which the FSM never applied. As executrix of the FSM’s estate, she requests to collect those military retired pay benefits that he would have received from the date of eligibility to the date of his death. Because his military records were not accurate, the FSM decided to correct his military records before making application for his military retired pay benefits. He continued this on and off until his death in December 1999. He earned his military retired pay. His estate and widow should not be barred from collecting said benefits.
EVIDENCE OF RECORD: The FSM's military records show:
He was born on 16 June 1935. After having had prior active duty, he entered the U. S. Army Reserve on 23 April 1960. His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 26 June 1980. He turned age 60 on 16 June 1995. He died on 6 December 1999 without ever had applied for retired pay.
There is no evidence of record to show that there was a problem with the FSM’s retirement points or other records or that he ever contacted the Army Reserve Personnel Command about such a problem.
Title 10, U. S. Code, section 12731(a) states that a person who meets certain eligibility criteria is entitled, upon application, to retired pay.
The Department of Defense Financial Management Regulation (DODFMR), paragraph 300101 states that entitlement to retired pay terminates on the date of the retiree’s death. The DODFMR defines “retired pay” as the gross entitlement for a member based on conditions of the retirement law, pay grade, years of service for basic pay, years of service for percentage multiplier, percentage of disability, if appropriate, and date of retirement.
In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities Branch, Army Reserve Personnel Command. That office noted that the FSM had been provided the necessary forms and instructions for applying for retired pay one year in advance of his 60th birthday yet he never made application for his retired pay.
A copy of the advisory opinion was provided to the applicant for comment or rebuttal. She did not respond within the given time frame.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. The law provides that retired pay is paid, upon application, to the member. Entitlement to retired pay terminates upon the member’s death. The FSM had an opportunity to apply for retired pay and dispute the accuracy of his records afterwards. There is no evidence of record to show that there was an inaccuracy in his records or that he ever contacted the Army Reserve Personnel Command about such a problem and the applicant provides no such evidence. The Board will not consider granting the relief requested without such evidence.
3. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__mdm___ __le____ __gjw___ DENY APPLICATION
| CASE ID | AR2001054805 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20010719 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 128.14 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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