PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2002073777


         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 L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Marla J. Troup		Member
Mr. Herbert O. Fry		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 that the records of her deceased spouse, a former service member (FSM), be corrected to restore his rank and grade of Staff Sergeant, E-6, to show that he applied for retired pay, and that she receive the Survivor Benefit Plan (SBP) annuity.

3. The applicant states that the FSM suffered a heart attack and knee injury when the Army National Guard (ARNG) sent him on temporary duty (TDY) to school at Fort Lee, VA in October of 1986. He was dropped from the ARNG in February 1988 for personal reasons and also because he was still on a medical leave due to the heart attack. The FSM had completed a Survivor Benefit Plan Election Certificate, DD Form 1883, and elected option C. They were told he would be notified by mail when to apply for retired pay. They received nothing in the mail and were told it was probably because the FSM had been dropped [from the rolls]. After it was acknowledged that she was eligible for the SBP annuity, she was told she would receive benefits based upon the FSM's grade of E-1. He was receiving benefits from the Department of Veterans Affairs (VA) in the grade of E-6. The FSM served his country for almost 30 years and his heart attack and heart condition were due to the physical activities he had to perform while TDY and she feels she is entitled to receive benefits based upon his grade of E-6.

4. The FSM's military records are not available. Information contained herein was obtained from alternate sources.

5. On 24 October 1986, the applicant developed acute chest pain while at Fort Lee, VA in a TDY status. He was hospitalized from 24 October to 3 November 1986. Upon his discharge, he was diagnosed with acute anteroseptal myocardial infarction. There is no further evidence regarding his medical condition.

6. The FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 7 July 1987. On 1 October 1987, he completed a DD Form 1883 and enrolled in the Reserve Component SBP (RCSBP) for spouse and children coverage, full base amount, option C.

7. A 27 October 1987 letter from the State of Washington Department of Corrections to the WAARNG indicated the FSM had been placed on 10 years probation on 6 September 1984 after being found guilty of the felony crimes of
second degree statutory rape and indecent liberties. On 18 May 1987, he was found guilty of violating his probation and sentenced to serve a total of 24 months in the Mason County jail.

8. On 25 November 1987, the FSM was recommended for separation under the provisions of Army Regulation 135-178 for misconduct, conviction by a civil court. The approval action is not available.

9. The FSM's Report of Separation and Record of Service, NGB Form 22, shows that he was separated from the ARNG and as a Reserve of the Army effective 2 February 1988 due to being dropped from the rolls (DFR) of the Army. Orders 32-21, Headquarters, Military Department, State of Washington, Office of The Adjutant General dated 2 February 1988 dropped him from the rolls of the Army effective 2 February 1988. Orders 32-20, Headquarters, Military Department, State of Washington, Office of The Adjutant General dated 2 February 1988 reduced him from Staff Sergeant, E-6 to Private, E-1 effective 2 February 1988.

10. The FSM died on 31 March 2002 shortly after turning age 60. The Defense Finance and Accounting Service - Cleveland Center verified that he had not applied for retired pay.

11. 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 not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.

12. 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.

13. Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay provided otherwise qualified.

14. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It states that it is the responsibility of each qualified individual to submit his or her application for retired pay.

15. National Guard Regulation 600-200, Enlisted Personnel Management, paragraph 8-5b states that ARNG soldiers can be DFRd when sentenced to confinement after having been found guilty of a major offense by a civil court. Paragraph 6-44d states that soldiers DFRd will be automatically reduced without board action to Private, E-1.

16. Army Regulation 135-178 establishes policies and procedures governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the U. S. Army Reserve. Paragraph 1-21 states that soldiers who are sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a civil court, and whose sentence has become final, whether or not actually confined, may be DFRd.

17. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) provides that service in the highest grade held or an intermediate grade will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause or for misconduct. A soldier who was reduced under these circumstances may petition the Army Grade Determination Review Board to advance him/her on the retired list to a higher grade.

CONCLUSIONS:

1. The evidence of record shows the FSM had been found guilty of felony crimes on 6 September 1984 (3 months before he and the applicant married) and placed on probation. The evidence of record shows he was found guilty of violating his probation on 18 May 1987 and sentenced to serve a total of 24 months in jail. It appears he never informed the WAARNG of either of his convictions. It appears the WAARNG did not learn of the FSM's status until the State of Washington Department of Corrections informed them on 27 October 1987.

2. In the meantime, the WAARNG had sent the FSM his 20-year letter in July 1987. Upon receiving it, the FSM elected to participate in the RCSBP for spouse and children coverage, full base amount, option C.

3. In February 1988, the FSM was DFRd based upon his civil conviction and confinement. He was reduced to Private, E-1 based upon the DFR action.

4. The FSM died on 31 March 2002 shortly after turning age 60 but he had never applied for retired pay. It appears to the Board the FSM's circumstances concerning his civil convictions may have hampered his capability to apply for retired pay.

5. Nevertheless, the Board notes that the applicant completed 20 qualifying years of non-Regular service for retired pay and concludes that it would be inequitable to deny the applicant an SBP annuity that the FSM properly elected solely because he failed to apply for retired pay.
6. The available evidence shows that the FSM was reduced to Private, E-1 because he had been convicted by a civil court, sentenced to confinement, and therefore dropped from the rolls of the Army. Unless the applicant can provide evidence to show that his conviction was overturned or that he was improperly dropped from the rolls of the Army, it appears that he was properly reduced from Staff Sergeant, E-6 to Private, E-1 and the SBP annuity should be paid based upon his grade of E-1.

7. The applicant has the option to request the Army Grade Determination Board advance the FSM on the retired list. A sample application to initiate this grade determination is provided to her.

8. 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 applied for retired pay in time to become effective 1 December 2001.

2. That the applicant be paid any and all due arrears of retired pay as a result of the above correction.

3. That the applicant be entitled to an SBP annuity based on the above correction effective 31 March 2002, the date of the FSM’s death.

4. That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any RCSBP/SBP costs due.

5. That so much of the application as pertains to the applicant receiving the SBP in the FSM's grade of E-6 be denied.

BOARD VOTE:

__fe___ __mt____ ___hf___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  __Fred N. Eichorn__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073777
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	136.04
2.	133.00
3.
4.
5.
6.