RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050000205


      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. Ronald DeNoia                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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, the wife of the deceased former service member (FSM),
requests that her late husband's records be corrected to show that he
completed 20 years of qualifying service for retired pay at age 60 and that
she be provided survivor benefits.

2.  The applicant states that the Alabama National Guard provided a Form
23A proving her late husband had 19 years, 11 months and 17 days of service
time.

3.  The applicant provides page 2 of NGB Form 23A (Army National Guard
Current Annual Statement); a memorandum from U.S. Army Human Resources
Command, St. Louis, Missouri, dated 9 April 2004; a copy of ABCMR case
AR2004104908, dated 19 October 2004; the FSM's DD Form 214 (Report of
Separation from Active Duty); ARPC Form 249-3 (Chronological Record of
military Service); NGB Form 23 (Army National Guard Retirement Credits
Record); AL-RPAS-2-R (Request for Correction of Chronological Statement of
Retirement Points); the FSM's LES for June 2000; the FSM's death
certificate; and a self-authored statement dated 18 May 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 February 2001.  The application submitted in this case is
dated 15 December 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  This is the applicant's second application to this Board. The original
application was denied on 19 October 2004 because only 14 years of
qualifying service could be verified at that time.

4.  The applicant is submitting new evidence in the form of page 2 of the
FSM's NGB Form 23A.  This form shows that the FSM, had 19 years, 0 months,
and   17 days of qualifying service for retirement purposes on 6 April
2004.  The applicant reasons that, at the time of the FSM’s death on 7
February 2001, he would have had over 19 years and 11 months of qualifying
service for retirement at age 60.

5.  The ARPC Form 249-3 shows the FSM had 14 years of qualifying service
for retirement; however, the years 1994 through 1997 are not included in
the calculation.  These years are annotated as "Trans to RPAS" (transferred
to Retirement Point Accounting System).  Additionally, this form concludes
with the year 1998 and no further entries were made.

6. The FSM's military personnel records contain an NGB Form 23B (Army
National Guard Retirement Point History Statement), dated 15 February 2001
from the state of Alabama.  This form includes all periods of the FSM's
service from 18 January 1974 until his death and shows 19 years, 11 months,
and 8 days of qualifying service for retirement at age 60.  The FSM’s
retirement years 1978,1979, and 1980 were served in the USAR Control Group
(reinforcement) and were non-qualifying for retired pay.  His retirement
years 1985 through 2001 as an Army National Guard Unit Member all reflect
qualifying years with over the minimum retirement points required.

7.  The NGB Form 23B also shows that the FSM, at the time of his death, had
earned 57 retirement points for that retirement year.

8.  Army Regulation 135-180 implements statutory authorities governing the
granting of “retired pay” to Soldiers and former Reserve component
Soldiers.

9.  Sections 1331 through 1337 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.

10.  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.  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).

11.  Records show the applicant should have discovered the alleged
injustice now under consideration on 7 February 2001, therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 February 2004.  Although the applicant did not file
within the ABCMR's statute of limitations, it is appropriate to waive
failure to timely file based on the interest of justice.

DISCUSSION AND CONCLUSIONS:

1.  The FSM does not meet the criteria to qualify for retirement pay at age
60; however, that is not the overriding factor in this case given the
equity considerations and the resultant injustice.

2.  Although the FSM did not qualify for retirement at the time of his
death, he served on active duty for 3 years to include 1 year, 1 month, and
2 days of overseas service.  His remaining qualifying service was with the
Alabama Army National Guard.  A review of his service records show that the
FSM's career spanned over 20 years and that he performed all of his duties
in a selfless, dedicated manner with no blemishes on his record.

3.  A careful review of the evidence of record reveals that the FSM served
19 years, 11 months, and 8 days of qualifying service for retirement;
however, he had already attained the minimum amount of points to qualify
for a 20th year.  In effect, the FSM had enough retirement points to
qualify for retirement, but was lacking 22 calendar days.  It is reasonable
to assume, had he not died accidentally, he would have completed the time
requirement of 20 years of service.

4.  In view of the above, and in the interest of justice and compassion, it
is appropriate to move 9 inactive duty retirement points from retirement
years 1985 and 1986 for a total of 18 retirement points to retirement year
1978, increasing that transition year to a 50 point year; thereby,
resulting in 20 qualifying years and eligibility for retired pay at age 60.

5.  It is reasonable to assume that had the FSM attained 20 qualifying
years of service he would have earned a 20-year letter and that he would
have thereupon elected to participate in the Reserve Component Survivor
Benefit Plan (RCSBP).


BOARD VOTE:

__rtd___  __jbg___  __swf___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected:

     a.  by moving 9 inactive duty retirement points from the retirement
years 1985 and 1986 to retirement year 1978, resulting in a point total of
50 points and a qualifying year for retirement;

     b.  to show the FSM was issued a 20-year letter entitling him to
retired pay at age 60;

      c.  to show the FSM completed a Survivor Benefit Plan Election
Certificate, DD Form 1883, upon receiving his 20-year letter and electing
to participate in the RCSBP for spouse, full base amount, option C; and

       d.  by paying the applicant an annuity based upon the FSM’s election
to participate in the RCSBP retroactive to 7 February 2001, the date of his
death, with appropriate costs being deducted.



                                  Richard T. Dunbar
                            ______________________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000205                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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