PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 15 August 2002
         DOCKET NUMBER: AR2002071008


         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. John N. Slone		Chairperson
Ms. Irene N. Wheelwright		Member
Mr. Jose A. Martinez		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.

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2. The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he completed 20 years of qualifying service for a non-regular retirement and that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).

3. The applicant states that the FSM was a police officer who died suddenly, leaving her with three children under 7 years of age. After he received what he understood was notification that he had 20 years of qualifying service, he announced that they had a Reserve retirement. They were issued Retired Identification Cards and he was issued a Retired Reserve Certificate which they further understood was another sign of his retirement eligibility. He never would have left the Reserve if he felt he was one day short of retirement.

4. The FSM’s military records show that he was born on 15 February 1947. After having had prior service in the U. S. Navy and U. S. Navy Reserve, he enlisted in the Army National Guard (ARNG) on 1 December 1980. His ARNG Points History Statement dated 23 June 1993 showed that he had 17 years, 3 months, and 10 days of creditable service for retired pay. He was discharged from the ARNG on 3 November 1993 and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement). His Report of Separation and Record of Service, NGB Form 22, shows that he had completed a total of 18 years, 2 months, and 14 days of service for pay.

5. On an unknown date, the FSM was transferred to a troop program unit. On 4 June 1995, he was transferred back to the Control Group (Reinforcement). Beginning with retirement year ending date 30 November 1995, he earned only 15 retirement points annually. Effective 3 November 1998, he was released from the Control Group and assigned to the Retired Reserve upon completing 20 or more years of Reserve Duty.

6. On 10 December 1998, the FSM and the applicant were issued Retired Reserve Identification Cards.

7. On 23 September 2001, the FSM died of cardiac arrest.

8. Around November 2001, the U. S. Army Reserve Personnel Command (AR-PERSCOM) determined the FSM completed 19 years, 2 months, and 13 days of qualifying service. A Statement of Retirement Points shows he earned 94 retirement points during retirement year ending (RYE) 30 November 1989. He earned 15 retirement points during RYE 30 November 1995.

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9. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.

10. Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

11. Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized. In pertinent part, it states that annual or terminal statements of retirement points (1) give a permanent record of the total retirement points a soldier earns during a retirement year; (2) tell the soldier whether he or she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and (3) give the soldier an opportunity to request correction of errors in the statement.

12. Army Regulation 140-10 covers policy and procedures for assigning, removing, and transferring USAR soldiers. In pertinent part, it states that an officer or enlisted soldier who has accrued 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the USAR. If a soldier does not earn the required 50 retirement points during a retirement year and the soldier does not request a one-time waiver, the soldier may request discharge or transfer to the Retired Reserve.

13. Section 1176(b)(2) of Title 10, U. S. Code states that, if on the date prescribed for the involuntary separation (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) from an active status of a reserve enlisted member or officer he is entitled to be credited with at least 19, but less than 20, years of service, he may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

14. Army Regulation 600-8-14, Identification Cards, Tags, and Badges, states in pertinent part that the Reserve Component Identification Card will be issued to all Reserve component members not on active duty (1) after transfer from the Active

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component to the Reserve component; (2) after initial appointment or enlistment into the Ready Reserve; and (3) upon transfer to the Retired Reserve upon qualifying for retirement at age 60 but not yet reaching age 60.

15. Section 12731(d) of Title 10, U. S. Code, states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

16. In the processing of this case, an advisory opinion was obtained from the Transition and Separations Branch, AR-PERSCOM. That office noted that the FSM did not complete 20 qualifying years of service for a non-regular retirement; however, it seemed apparent that the unit administrator at his ARNG unit did not properly advise him concerning the difference between 20 years of service and 20 qualifying years.

17. 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 60^th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

CONCLUSIONS:

1. While it appears the FSM did not keep track of how many qualifying years he had as reflected on his annual statements of retirement points, there appear to be several Government errors in this case.

2. When the FSM was discharged from the ARNG, his NGB Form 22 told him that he had only a little over 18 years of qualifying service. After he transferred to the USAR, it appears he earned only one additional qualifying year. It appears he may have been released from an active status because of nonparticipation (if so it was erroneously, since he did not have 20 qualifying years of service) and his transfer to the Retired Reserve orders show the reason as completion of 20 or more years reserve duty. Had his retirement points been accurately calculated before issuing these transfer orders they would have shown that he had only 19 years of qualifying service. It is reasonable to presume that he would then have attempted to earn a further qualifying year.

3. The FSM and the applicant were then issued Retired Reserve identification cards without the issuing facility having a 20-year letter to verify his eligibility for retired pay at age 60. It is understandable why the FSM would have thought he was eligible for retired pay at age 60. It would therefore be equitable at this point to redistribute excess retirement points from one RYE (e.g., RYE 30 November 1989) to an RYE which currently is not a “good” year (e.g., RYE 30 November 1995) to show he earned a 20^th qualifying year of service and to show that he received his 20-year letter.

4. If the FSM had remained in an active status and earned a 20-year letter, it is reasonable to presume that he would have thereupon elected to participate in the RCSBP. He worked in a high-risk civilian occupation and had three young children to consider.

5. 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:
a. to amend the FSM’s Statement of Retirement Points for RYE 30 November 1989 to show he earned 59 total retirement points and redistributing the excess retirement points to RYE 30 November 1995 to show he earned 50 total points and a 20th qualifying year of service; and
b. to show the FSM was issued a 20-year letter in 1996 entitling him to retired pay at age 60.

2. That the records be corrected to show the FSM completed a Survivor Benefit Plan Election Certificate, DD Form 1883, upon receiving his 20-year letter and elected to participate in the RCSBP for spouse and children coverage, full base amount, option C.

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3. That the applicant be paid an annuity based upon the FSM’s election to participate in the RCSBP retroactive to 23 September 2001, the date of his death.

BOARD VOTE:

__JNS __ __INW __ __JAM __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                             ___ John N. Slone ___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071008
SUFFIX
RECON
DATE BOARDED	2002/08/15
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	137.02
2.	135.02
3.	136.03
4.
5.
6.