RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 October 2004
      DOCKET NUMBER:   AR20040002945


      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. James C. Hise                 |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

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

2.  The applicant states that the FSM was incorrectly informed and
improperly counseled at the time he was making a decision about the
termination of his military career.  Clearly, if he had accurately known
that he fell short of the required creditable service for retirement and
that the time he lacked was less than one year, he would have delayed his
separation in order to earn the required 20 years.

3.  In a letter to his Representative in Congress dated 13 August 2002 and
written shortly before he died, the FSM stated that an injury that was the
direct result of an "in the line of duty" injury put an early end to his
military service.  At the time, he had 20 years, 3 months, and 16 days of
service for pay and, therefore, he strongly felt he was rightfully entitled
to retired pay.  He was told he should begin the military retired pay
process when he turned age 59.  However, he was then told that he did not
have the minimum number of points needed to retire.  He was further told
that in the early 1990s the requirement was changed from 20 years to 15
years of creditable service.

4.  In a letter to the Chief, Army Retirement Services, the FSM's
Representative in Congress stated that it appeared the FSM did not receive
the kind of counseling in 1986 – 1988, when he faced disability retirement,
that would have enabled him to know accurately just how much creditable
service he had earned and to know the implications for his potential
retirement eligibility.  Had his counselors told him he actually had 19
good years rather than 18 and that he only needed 50 points in one of his
remaining years, clearly the FSM would have taken advantage of available
opportunities to earn those points.  He could have arranged with the Army
National Guard (ARNG) to earn additional retirement points through
correspondence study, as he had done in previous years.

5.  The applicant provides her marriage certificate; a request dated 6
October 2003 to the U. S. Navy for a statement of service and the response
from the Department of the Navy dated 9 October 2003; the death
certificate; a letter dated 7 October 1988 from the Chief, Physical
Disability Branch, U. S. Army Military Personnel Center (MILPERCEN); three
DD Forms 214 (Armed Forces of the United States Report of Transfer or
Discharge); and a memorandum from the Vermont ARNG dated 30 August 2002
with attached ARNG Current Annual Statement.
CONSIDERATION OF EVIDENCE:

1.  The FSM’s military records are not available to the Board.  This case
is being considered using reconstructed records which primarily consist of
the documents provided by the applicant.

2.  The FSM was born on 20 September 1942.  He enlisted in the U. S. Navy
on 24 August 1960.  He was honorably discharged on 16 September 1963 for
the purpose of immediate reenlistment.

3.  The 9 October 2003 letter from the Department of the Navy indicated
that the Navy's minority enlistment program allowed male applicants to
enlist at the age of 17 with the consent of his parents or guardians.  A
completed minority enlistment was counted as 4 years of active service.
Since the FSM enlisted as a minor and was discharged on 16 September 1963
after completing 3 years   and 23 days of service, he was awarded
constructive service of 11 months and  7 days.  The Navy terminated
constructive service credit 31 December 1977.

4.  The applicant reenlisted on 17 September 1963.  He and the applicant
married on 24 April 1965.  On an unknown date, he extended his enlistment
one month.  On 16 October 1967, he was honorably discharged, having
completed his 6-year military service obligation, at the expiration of his
term of enlistment.

5.  The FSM enlisted in the ARNG on 6 September 1975.  He had qualifying
years (earned 50 or more retirement points a year) for a non-regular
retirement up through retirement year ending (RYE) date 5 September 1986.
He did not have qualifying years in RYEs 5 September 1987 and 5 September
1988, earning only 15 membership points each of those years.

6.  The 7 October 1988 letter from the Chief, Physical Disability Branch,
MILPERCEN indicates that orders dated 7 October 1988 authorized the FSM's
discharge with severance pay.  The FSM was a Master Sergeant at the time.
The letter also indicated that the order authorized discharge from the
Reserve of the Army only and did not affect the FSM's status in the Vermont
National Guard.

7.  The ARNG Current Annual Statement [of retirement points] provided by
the applicant shows the FSM was discharged from the ARNG on 28 October
1988.

8.  The FSM died on 21 October 2002.

9.  Title 10, U. S. Code, sections 1331 through 1337 at the time,
authorizes 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.  Service in a non-federally recognized
status in the National Guard may not be counted.

10.  Public Law 106-65, dated 5 October 1994, established early reserve
retirement eligibility for soldiers involuntarily separated from the
Selected Reserve due to physical disability during the period 5 October
1994 through      30 September 1999.  The ending period of the program was
later extended and then made permanent.  Eligibility was based on a minimum
of 15 years of qualifying service toward a non-regular retirement.  Title
10, U. S. Code, section 12731a(a)(1) was amended to begin the Early Reserve
Retirement Eligibility for Disabled Members program effective 23 October
1992.

11.  Title 10, U. S. Code, section 3261 at the time, provided that a person
who enlists or reenlists in the ARNG would be concurrently enlisted or
reenlisted as a Reserve of the Army for service in the Army National Guard
of the United States (ARNGUS).

12.  Army Regulation 135-178 (Enlisted Separations), paragraph 1-7b states
that discharge of an enlisted soldier from status held as a Reserve of the
Army also terminates membership in the ARNGUS.  In the case of ARNGUS
personnel, termination of status as a member of the ARNG of the State rests
with State military authorities.

13.  National Guard Regulation 680-2 (Automated Retirement Points
Accounting System) prescribes ARNG procedures for recording retirement
points and years of creditable service for (non-regular) retired pay.
Paragraph 2-7 states that the ARNG Retirement Points History Statement will
be provide the soldier when the Retirement Points Accounting System (RPAS)
statement is initially established or upon request.  The soldier will be
provided the ARNG Current Annual Statement annually, at the end of the
soldier's retirement year.

14.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members on active duty could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.

15.  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 60th birthday; (C)
elect that a beneficiary receive an annuity immediately upon their death if
before age 60.

DISCUSSION AND CONCLUSIONS:

1.  It cannot be determined why the applicant believes the FSM had 19 years
    of creditable service for a non-regular retirement.  The FSM's ARNG
Current Annual Statement [of retirement points] clearly shows he had a
little over           18 years of qualifying years for a non-regular
retirement.  If the applicant is using the Department of the Navy's 9
October 2003 letter as verification that he had an additional qualifying
year, she should note that the years of the FSM's first enlistment in the
Navy are already listed as qualifying years on the FSM's Current Annual
Statement.

2.  The applicant's, the FSM's, and the Representative in Congress's
contentions regarding the FSM being improperly counseled concerning how
much creditable service he had earned have been considered.  However, the
FSM was a senior noncommissioned officer.  He had been receiving annual
ARNG statements of retirement points since his enlistment in the ARNG in
1975.  He should have known at his RYE 5 September 1986 that he had only 18
years, 1 month, and   23 days of creditable service for retired pay.

3.  It appears the FSM may have stopped earning retirement points (other
than membership points) after RYE 5 September 1986 due to medical problems.
However, since he should have known at that time he had only a little over
         18 years of creditable service for retired pay, he could just as
well have started earning retirement points by correspondence courses at
that time.  Since he was not separated until 28 October 1988, it is
possible he could have earned the needed two additional qualifying years by
the time he separated.

4.  The applicant's perception that the FSM could have delayed his
separation in order to earn the required 20 years is erroneous.  The FSM
was not medically qualified for retention.  Separation was not a voluntary
decision on his part.  Once he was disqualified for service in and
discharged from the Reserve of the Army, he no longer had a status in the
Army National Guard of the United States. He could have maintained a status
in the Vermont National Guard; however, service in a non-federally
recognized status in the National Guard cannot be counted towards
qualifying service for a non-regular retirement.

5.  Regrettably, the Early Reserve Retirement Eligibility for Disabled
Members law does not apply in this case.  Although the FSM completed his 15
years of qualifying service under this law by 1 October 1991, the law
established the period of retirement as beginning on 23 October 1992, four
years after his separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jch___  __bpi___  __ym____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ___James C. Hise______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002945                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041019                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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