PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002070550


         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Paula Mokulis		Member
Mr. John P. Infante		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, as the spouse of the deceased former service member (FSM), that her husband’s military records be corrected to show his retired grade as Staff Sergeant (SSG), pay grade E-6, instead of Sergeant (SGT), pay grade E-5. The applicant telephonically amended her application on 19 February 2002, to request her husband’s records show that he applied for retired pay and that she be entitled to survivor benefits.

3. The applicant states that the FSM’s retirement points history indicates the pay grade of E-5; however, orders 15-2, dated 1 October 1982, indicate that the FSM was promoted to E-6. In support of her application, she submits copies of:
the FSM’s promotion orders; a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), dated 6 February 1993; the FSM’s discharge orders; the FSM’s Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter); the FSM’s Death Certificate; the FSM’s Army National Guard Retirement Points History Statement/Application for Retired Pay; Assignment of Casualty Assistance Officer (CAO) memorandum; a DD Form 1300 (Report of Casualty); a statement from the FSM’s physician; a hand written letter; five National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service); an NGB Form 22a (Correction to NGB Form 22); and a copy of the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty).

4. The FSM’s military records show that he enlisted in the Tennessee Army National Guard (TNARNG) on 24 March 1959. He served two terms of enlistment and was honorably discharged from the TNARNG on 1 March 1965.

5. After a break in service, he reenlisted in the TNARNG on 1 November 1975,
for 1 year in the pay grade of SGT/E-5. He continued to serve until he was honorably discharged from the TNARNG on 31 October 1976. He enlisted in the Tennessee Air National Guard (TNANG) on 6 November 1976. He continued to serve until he was honorably discharged from the TNANG and as a Reserve of the Air Force on 1 September 1981.

6. He reenlisted in the TNARNG on 12 September 1981, for a period of 3 years, in the pay grade of E-5. He was promoted to the pay grade of SSG/E-6 on 1 October 1982. He continued to serve until he was honorably discharged from the TNARNG on 11 September 1984, in the pay grade of SSG/E-6.

7. He reenlisted in the TNARNG on 19 September 1984, in the pay grade of SGT/E-5, and continued to serve in the TNARNG until 6 February 1987. He reenlisted in the TNARNG on 7 February 1987, in the pay grade of SGT/E-5.




8. On 14 July 1992, the TNARNG notified the FSM that he had completed the required years of service to be eligible for retired pay at age at 60 (20-Year Letter). There is no evidence of record to indicate when the FSM received his 20-Year Letter.

9. On 6 February 1993, the FSM was honorably discharged from the TNARNG and was transferred to the USAR Control Group (Retired Reserve) in the pay grade of E-5. There is no evidence of record that the FSM was ever reduced in pay grade for misconduct.

10. The FSM submitted a DD Form 1883 on 6 February 1993, which shows that he applied for retirement and survivor benefits and elected Option C, immediate spouse and children coverage. This form was forwarded to the TNARNG State Headquarters but it was not processed to the Army Reserve Personnel Command (AR-PERSCOM). A date stamp on the form shows that it was not received at the State Personnel Center until 3 January 1994.

11. The applicant provided a copy of the FSM’s Army National Guard Retirement Points History Statement, dated 8 June 2001, which shows that the FSM had completed 21 years of qualifying service for retirement purposes. However, there is no evidence that the FSM filed a request for retired pay prior to his death.
The applicant reached age 60 on 27 February 2001. He passed away on 2 June 2001.

12. The applicant provided a copy of a physician statement which stated that the FSM was incapacitated and unable to conduct his business and legal matters when he became eligible for retired pay.

13. The applicant provided a copy of a memorandum from the TNARNG, dated 19 June 2001, which shows that a CAO was appointed.

14. The applicant provided a copy of DD Form 1300, which shows the FSM’s duty status at the time of his death as retired effective 27 February 2001.

15. National Guard Regulation (NGR) 600-200, chapter 2, prescribes policy and eligibility standards for enlistment of persons with prior service (PS) or without prior service (NPS) into the ARNG and prescribes policy for the reenlistment of an applicant with prior ARNG or Air National Guard (ANG) service. Paragraph 2-27 states, in pertinent part, that PS applicants may be enlisted up to the pay grade last held be at the time of discharge, or presently holding, but not to exceed pay grade E-5, and that enlistment could be made without regard to the grade required by the position vacancy for which they are enlisting.



16. Title 10, United States Code, section 1406 provides the legal authority for providing retired pay. Sub-paragraph b(2) states, in pertinent part, that a person who is entitled to retired pay for a non-regular service retirement should receive
retired pay based on the highest pay grade they held and in which they satisfactorily served at anytime in the Armed Forces.

17. Title 10, USC, section 3991, provides for the computation of retired pay by the use of the most favorable formula. It states that if a person would otherwise be entitled to retired pay computed under more than one formula, then he is entitled to be paid under the applicable formula that is most favorable to him.

18. 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 60^th 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 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

CONCLUSIONS:

1. The Board notes that the applicant was transferred to the Retired Reserve under non-regular service provisions of the law in the rank and pay grade of SGT/E-5.

2. The evidence of record shows that the FSM served satisfactorily in the pay grade of SGT/E-5 from 1 November 1975 to 30 September 1982, in the pay grade of SSG/E-6 from 1 October 1982 to 11 September 1984, and again in the pay grade of SGT/E-5 from 19 September 1984 to 6 February 1993. There also is no evidence of record to show that the FSM was reduced in pay grade due to misconduct.

3. By law, members retired based on non-regular service age and service requirements are entitled to be placed on the Retired List and receive retired pay in the highest grade in which they satisfactorily served at anytime in the Armed Forces. The evidence of record confirms that the applicant satisfactorily served as a SSG/E-6 and therefore, the Board concludes he is eligible to be placed on the USAR Retired List in that rank and pay grade and to receive retired pay accordingly.

4. The evidence of record shows a DD Form 1883 was submitted by the FSM, which shows that he applied for retirement and survivor benefits, elected Option C, immediate spouse and children coverage, and which was forwarded to the TNARNG State Headquarters. However, this form was never processed to AR-PERSCOM and may have been executed beyond the required 90-day time limit.

5. The evidence of record shows that he was qualified for transfer to the Retired Reserve as indicated by the issuance of a 20-Year Letter and that he completed
21 years of qualifying service for retirement purposes. However, there is no evidence to show that he filed a request for retired pay prior to his death.

6. The Board notes that the FSM was incapacitated and was unable to conduct his business and legal matters. The Board believes that had the FSM not been incapacitated at that time, he would have requested retired pay with spouse and children SBP coverage. Therefore, in the interest of justice, the Board recommends that the FSM’s records be corrected to show that he was entitled to retired pay and SBP with spouse and children coverage effective 27 February 2001.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by showing that he applied for retired pay upon reaching age 60 on 27 February 2001, in pay grade E-6 under the provisions of Title 10, USC, section 3964, elected SBP spouse and children coverage, and at that time full base amount, thereby allowing the applicant to become an eligible annuitant upon his death on 2 June 2001.

BOARD VOTE:

__ro____ __pm___ ___ji___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  ___Raymond V. O'Connor, Jr.__
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002070550
SUFFIX
RECON
DATE BOARDED	20020530
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19930206
DISCHARGE AUTHORITY	AR NG 600-200 8-27v
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 306
2.
3.
4.
5.
6.