RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 5 May 2005
DOCKET NUMBER: AR20040006435
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 E. Anderholm | |Chairperson |
| |Mr. Leonard G. Hassell | |Member |
| |Ms. Laverne V. Berry | |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 was reinstated with
back pay and that she receive retirement benefits.
2. The applicant states that 31 years after the FSM's death she is finding
out he had seven medals she knew nothing about and she is entitled to
benefits. She only received the medals a short while ago. The Army never
informed her of the benefits she was entitled to.
3. The applicant provides the FSM's DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge); their marriage certificate;
his retirement orders; and a DD Form 1300 (Report of Casualty).
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 28 June 1968. As a result of a
combat wound, he was placed on the Temporary Disability Retired List (TDRL)
on 10 March 1970.
2. The FSM's DD Form 214 shows he had been awarded the Vietnam Service
Medal, the National Defense Service Medal, the Combat Infantryman Badge,
the Air Medal, the Purple Heart, and four marksmanship qualification
badges.
3. The FSM and the applicant married on 7 October 1971.
4. The FSM died on 24 September 1972 while still on the TDRL.
5. The applicant was issued a military identification card on 24 September
1972. She may have later inquired about other benefits. By letter
dated 3 February 1978, her Senator was informed that she was
entitled to a military identification card.
6. Public Law 92-425, enacted 21 September 1972 established the SBP. The
SBP 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. Upon creation of the SBP, an 18-month Open Season was conducted
from 21 September 1972 through 20 March 1974 in which all pre-1972
retirees were given the option to enroll. Until the law was changed in
1976, there was a 2-year waiting period for new spouse eligibility
following post-retirement marriage.
DISCUSSION AND CONCLUSIONS:
1. It cannot be determined exactly what type of "retirement" benefits the
applicant may be referring to.
2. If the applicant is referring to the SBP, there is no evidence of
record and she provides no evidence to show the FSM enrolled in the SBP.
From the timing of the FSM's death, 3 days after the SBP was established,
it appears reasonable to presume that he did not enroll in the program.
Even if he had enrolled, the applicant would not have been eligible for
benefits under the SBP because she had not been married to the FSM for at
least two years immediately before his death.
3. There is no basis on which to correct the FSM's records to show he was
reinstated. He was placed on the TDRL in March 1970 and was still on the
TDRL when he died. Therefore, there is no evidence to show he was
medically qualified to return to active duty or, had he been found
medically qualified to return to active duty, that he would have elected to
so. In any case, such a reinstatement would have negated any claim for
retirement benefits.
4. The FSM would not have been entitled to any additional retired pay
based on the awards he had received. In any case, any entitlement (such as
an increase in retired pay based on award of the Medal of Honor) would have
ceased upon his death.
5. It appears the applicant has received the only benefits to which she is
entitled to - a military identification card – and the benefits that flow
from valid possession of a family member identification card.
6. There is insufficient evidence on which to grant the applicant's
request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__jea___ __lgh___ __lvb___ 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 E. Anderholm__
CHAIRPERSON
INDEX
|CASE ID |AR20040006435 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20050505 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Chun |
|ISSUES 1. |137.00 |
|2. |136.00 |
|3. | |
|4. | |
|5. | |
|6. | |
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