RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2006
      DOCKET NUMBER:  AR20060003088


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Michael Flynn                 |     |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, in effect, that the military records of her
deceased spouse, a former service member (FSM), be corrected to show he
applied for retired pay upon reaching age 60 and that she be paid his
retroactive retired pay and a Survivor Benefit Plan (SBP) annuity.

2.  The applicant states, in effect, that her late husband was unable to
receive retirement benefits because the offices in St. Louis, Missouri
could not locate all of his records.  She contends that the enlistment
records of her late husband’s second enlistment were lost or mixed up.

3.  The applicant provides two applications; a death certificate; two
Chronological Statement of Retirement Points; a DD Form 2656 (Data for
Payment of Retired Personnel), dated 29 May 2005; a DD Form 214 (Report of
Transfer or Discharge); and documentation pertaining to correspondence
courses.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 21 January 1941.  He and the applicant married on
15 June 1963.  After having prior enlisted and commissioned service in the
U.S. Army Reserve (USAR), the applicant enlisted in the USAR on 7 May 1985.


2.  Records at the U.S. Army Human Resources Command - St. Louis indicate
that the FSM’s notification of eligibility for retired pay at age 60 (his
20-year letter) was issued in August 1993.  Their records also indicate
that the FSM's records did not contain a DD Form 1883.  It appears he did
not return the DD Form 1883.

3.  On 13 July 1995, the FSM was honorably discharged from the USAR.

4.  On 21 January 2001, the FSM reached age 60.

5.  On 21 May 2005, the FSM died.

6.  Records at the Defense Finance and Accounting Service (DFAS) and the
Transition and Separations Branch at the Human Resources Command – St.
Louis, Missouri, show the FSM did not apply for retired pay prior to his
death.

7.  In support of her claim, the applicant provided a DD Form 2656, dated
29 May 2005, which she prepared and indicated that “Richard passed away May
21, 2005.  His application for retirement pay was denied because St. Louis
could not locate all of his records.  I am asking that those records be
found & benefits started for his spouse.”  She also indicated on this form
that SBP for spouse coverage, full base amount was elected.

8.  The FSM’s records, to include at least one Summary Points Inquiry,
dated    10 November 1992, are currently available.

9.  Title 10, U.S. Code, section 12731(a) states that a person is entitled,
upon application, to retired pay if the person is at least 60 years of age,
has performed at least 20 years of qualifying service, and the last eight
years of qualifying service have been performed while a member of a Reserve
Component.

10.  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.

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

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.

DISCUSSION AND CONCLUSIONS:

1.  By law, receipt of retired pay, even though an entitlement, is only
paid upon application by the member.

2.  Also by law, once a member has received notification of eligibility for
retired pay, that eligibility may not be denied.

3.  In support of her claim, the applicant provided a DD Form 2656, which
she prepared, and on which she indicated the FSM’s application for
retirement pay was denied because St. Louis could not locate all of his
records.  However, she provides no evidence to show that he applied and his
application was denied.  Records at DFAS and the Human Resources Command –
St. Louis, Missouri, show the FSM did not apply for retired pay prior to
his death.

4.  The FSM’s records are currently available, and at least one Summary
Points Inquiry is available.  In addition, the FSM should have been
receiving Retirement Points Summary statements annually, and he could have
used his statement as evidence of his service.  In the absence of evidence
to the contrary, it is presumed the FSM had his own valid reasons for not
applying for retired pay.

5.  Nevertheless, the FSM honorably served the Army for over 20 years and
earned his retired pay.  His spouse, the applicant, helped him earn his
retired pay.

6.  While there is insufficient evidence to show that it would be equitable
to correct the FSM’s records to show he applied for retired pay prior to
turning age 60, it would be compassionate to correct his records to show he
applied for retired pay on 1 April 2004 (approximately one year prior to
his death) and elected the applicant as his beneficiary for unpaid retired
pay.

7.  However, there is insufficient evidence to show that the FSM ever
intended to participate in the SBP.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

JS_____  __LE____  _MF_____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing he applied for retired pay on 1 April 2004, named the
applicant as his beneficiary for unpaid retired pay, and returned the
application to the appropriate office in a timely manner, where it was
processed in a timely manner to be effective 1 May 2004.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correcting the records to show he applied for retired pay any earlier than
1 April 2004 or to show he elected to participate in the Survivor Benefit
Plan.




                                  ___John Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003088                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061214                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1400                                |
|2.                      |137.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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