PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 April 2003
         DOCKET NUMBER: AR200202077994


         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
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Patrick H. McGann		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 military records of her deceased spouse, a former service member (FSM), be corrected to show that he was eligible for retirement and retired pay at age 60, and that she be paid a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

3. The applicant’s counsel states, in effect, that this application is based on three legs. The first leg is the Sixth Army Letter, dated 1 November 1981, Subject: Notification of Retired Eligibility, that contained a suspense date of 16 December 1981, which appears to have been ignored. The second leg is the fact that the applicant was awarded the Army Reserve Components Achievement Medal on 28 October 1978. Finally, the third leg is the cognitive dissonance created when it appears that a 71L senior noncommissioned officer (NCO) who was in a long term stable marriage voluntarily separated sixteen days short of retirement eligibility leaving himself and his prospective widow exposed.

4. Counsel states that on 4 October 1981, the FSM’s unit, the United States Army Reserve Command (USARC), Los Angeles, California, requested a letter of eligibility for retired pay at age 60 for 4 NCOs including the FSM, who they believed were eligible to retire. The letter was forwarded through the Commander, 63^rd Army Reserve Command (ARCOM), to the Commander, Sixth Army. Sixth Army officials, in preparing their endorsement somehow typed the wrong last four digits of the FSM’s social security account number (SSAN). His counsel claims to be confused over what occurred after this request was made to the Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri. A telephone inquiry form (DARC Form 83), dated August 1987, which took place shortly after the FSM’s death at age 50, mentions a 20 year letter that contains the wrong SSAN, but this could not be found in the ARPERSCOM files. Further, a Freedom of Information Act (FOIA) request did not produce the letter and the FSM’s spouse has no knowledge of seeing the letter. Counsel believes that the letter was pulled for correction and was either misfiled or lost, and there is a duty to correct significant errors when they come to light. Counsel states that this whole process was routine, and if the FSM’s unit believed that he was not eligible for retirement, he would have been notified and given the option to take the remedial actions to get him retirement eligible.

5. The second leg is based on the fact that the applicant was awarded the Army Reserve Components Achievement Medal on 28 October 1978. Counsel claims that case law dealing with administrative actions seems to favor a presumption of regularity, which means that the system normally works. The period for this award granted the applicant was June 1972 through June 1976. 1974, the year for which the applicant did not receive a qualifying year for retirement purposes, was in the middle of this period covered by the award. The FSM’s unit commander approved this award, which clearly indicates that the chain of command believed that he met all the service requirements for the period.
6. Counsel also states that the third leg supporting this request is the anomaly of a senior administration NCO allowing an administrative error to slip by that affects his own retirement. Counsel indicates that current regulations state that before the FSM’s 59^th birthday, which would have been in 1996, he would have received a retirement package and SBP election form. Unfortunately, the FSM died in 1987, when he was 50 years of age, while he thought he was a gray area retiree. He was not around to either explain where to look for missing records or to help correct any miscalculations in his service credit.

7. Counsel indicates that the FSM’s evaluation reports shows nothing but superlatives, and it can be surmised from his performance of duty that he had the ability to navigate the system, and there is no reason to believe that after
20 years of service, he would have failed to ensure his retirement eligibility. Under current regulatory policy, a retirement eligible member would receive a retirement packet that includes an SBP election form just prior to reaching their
59^th birthday, which in the FSM’s case would have been in 1996. Unfortunately, the FSM died in 1987, while he believed he was a “gray retirement” retiree. He was not around to explain where to look for missing records or to help explain the incorrect calculations in his service credit. Given the FSM’s record of service, as evidenced in his evaluations reports, it can be presumed that he had the ability to navigate the system, and would not have failed to ensure that he was eligible for retirement after serving for 20 years. Counsel states that this would have been out of character, and it defies logic and reason to believe that the FSM ignored a shortfall of just 14 days in his retirement eligibility.

8. Counsel states that the deceased FSM’s spouse is a retired casino worker living on a modest Social Security payment. He claims that the FSM and his spouse based their retirement plans upon the belief that she would receive an annuity when the FSM died. Also, the shock of finding out that neither a retirement nor an annuity exists has had a detrimental effect on the quality of her life. Counsel concludes that an administrative error occurred that caused the FSM’s record to reflect a shortfall of 14 days, and the appropriate response is to correct this good soldier’s record. In support of the application, counsel submits the following documents: a certificate of death; a copy of letter dated 4 October 1981, SUBJECT: Request for Eligibility For Retired Pay at Age 60; a copy of letter dated 4 November 1981, SUBJECT: Notification of Retired Pay Eligibility; a copy of memorandum dated 28 October 1978, SUBJECT: Award of Army Reserve Components Achievement Medal; Enlisted Efficiency Report
(DA Form 2166-4; and the FSM’s Chronological Record of Service
(ARPC Form 249-3) dated 20 November 2000.

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9. The FSM’s military records show that on 16 October 1960, he initially enlisted in the United States Army Reserve (USAR) for 6 years. He continued to serve in the USAR until 30 September 1981, at which time he was honorably discharged. On 28 July 1987, the FSM died.

10. The FSM’s Chronological Record of Service (ARPC Form 249-3), dated
20 November 2000, shows that he completed 19 years, 11 months, and 14 days of qualifying service for retirement purposes. This document also confirms that during his qualifying years of service he earned in excess of 65 points a year except during the Retirement Year Ending (RYE) 15 October 1975, which reflects credit for only 15 points.

11. The FSM’s Military Personnel Records Jacket (MPRJ) contains a copy of a letter dated 4 October 1981, SUBJECT: Request for Eligibility For Retired Pay at Age 60, which was forwarded through the Commander, 63^rd ARCOM to the Commander, Sixth Army. This document requested the FSM’s file be reviewed for eligibility for retired pay at age 60. The deceased FSM would have reached age 60 on 2 August 1997.

12. The FSM’s MPRJ also contained a letter dated 4 November 1981, SUBJECT: Notification of Retired Pay Eligibility, forwarded to the Commander, ARPERSCOM, which requested a Certificate for Retired Pay at Age 60
(20-Year Letter) be issued to the FSM based on his 20 years of qualifying service. The SSAN used in this letter is inconsistent with the SSAN listed in orders and other documents prepared and published on him throughout his tenure in the USAR. Specifically, the last four digits were incorrectly entered.

13. There is no evidence contained in the MPRJ that shows the FSM was issued a Certificate for Retired Pay at Age 60 (20-Year Letter). The FSM would have turned 60 on 2 August 1997.

14. A memorandum dated 28 October 1978, SUBJECT: Award of Army Reserve Components Achievement Medal, shows the FSM met the regulatory requirements to receive this award for the period 25 June 1972 to 24 June 1976.

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15. The evidence of record contains responses to inquiries from counsel from the Chief, Transition and Separations Branch, ARPERSCOM, concerning the eligibility of the FSM’s spouse for survivor benefits. ARPERSCOM informed the applicant’s counsel that to be eligible for retired pay at age 60, under Title 10, USC, Sections 12731 through 12739, a Reserve soldier is required to complete a minimum of 20 qualifying years of service and the last 8 years of qualifying service must be in a Reserve Component. An audit of the FSM’s Chronological Record of Service (ARPC Form 249-3) shows that he completed 19 years,
11 months, and 14 days of qualifying service for retirement purposes, and that the applicant was ineligible to receive an SBP annuity.

16. Sections 12731 through 12739 of Title 10, USC, 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. After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more. This law further requires that the last
8 years of qualifying service must be in a Reserve Component. 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.

17. Public Law 95-397, the Reserve Component Survivor Benefit Plan (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 SBP annuity pay.

CONCLUSIONS:

1. The evidence of record clearly shows that the FSM was honorably discharged, effective 30 September 1981 after completing 19 years, 11 months, and 16 days of qualifying service. The evidence of record also shows that the deceased FSM failed to obtain sufficient points to be eligible for retirement, as twenty years of qualifying of service are required by statutory guidance.

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2. However, the record also clearly shows that during all his qualifying years of service, the FSM earned in excess of 65 points per year. Since the deceased FSM had less than a month to qualify for retired pay, and his command requested a 20 year letter be issued to him on the presumption that he had completed the service necessary to qualify for retirement, it is evident that the FSM thought he had sufficient qualifying service for retired pay at the time of his discharge.

3. The record confirms that the deceased FSM has sufficient excess retirement points that can be redistributed to his unqualifying retirement year ending on
15 October 1975. This redistribution would not involve awarding additional retirement points, entitlement to additional drill pay, or adding an additional period of service. In the opinion of the Board, It would now be in the interest of justice to redistribute the necessary excess retirement points to his retirement year ending on 15 October 1975, and showing that retirement year as qualifying for retirement.

4. There is no evidence that the FSM wanted SBP. Six years elapsed between his retirement and his death with no action on the FSM’s part regarding SBP. However, in reliance on applicant’s assertion that she and her husband’s retirement plan included his receipt of retirement pay or her receipt of the annuity his records should be changed to show he elected option B prior to his death.

5. 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:
 
         a. redistributing the necessary excess retirement points from his prior retirement years to his retirement year ending on 15 October 1975, and showing the retirement year qualifies for retired pay, and he was provided a Certificate for Retired Pay at Age 60 (20-Year Letter);

         b. by showing he elected option B under the Reserve Component Survivor Benefit Plan for spouse coverage, full base amount; and
 

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         c. by providing the spouse of the deceased FSM a RCSBP annuity effective 2 August 1997, the date upon which the FSM would have reached age 60.

BOARD VOTE:

__sac___ __ra ____ ___pm __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077994
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/04/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 334	135.0200
2.
3.
4.
5.
6.