RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20070002464 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Mr. Richard Dunbar

Chairperson

Mr. Chester Damian

Member

Mr. Edward Montgomery

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 records of her deceased former spouse, a former service member (FSM), be corrected to show he completed 20-years of qualifying service for a non-regular retirement and that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) so as to extend survivor benefits to his two surviving minor children.

2.  The applicant states that her former spouse did complete his 20 years of qualifying service for retirement, that he did request transfer to the Retired Reserve and that he was granted his 20-year retirement letter notifying him of his eligibility for retirement at age 60.  The applicant further states that Human Resource Command (HRC)-St. Louis revoked his 20-year retirement eligibility letter due to his death on 1 June 2005, which was six days before his retirement year ending (RYE) date.

3.  The applicant provides a personal statement, copies of chronological history of deceased Soldier's military service, notification of eligibility to retire letter, notification of removal from eligibility retirement status, copy of former spouse's death certificate, and copies of divorce and child custody court documents, which grant her custody of their two minor children.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice, which occurred on 5 September 2006, the date HRC-St. Louis (formerly United States Army Personnel Command) wrote a letter to the applicant's sister-in-law, who is the personal representative for the deceased Soldier's estate.  HRC-St. Louis says in effect, it will not honor the previously published 20-year retirement eligibility letter due to the death of the Soldier 6 days prior to his retirement year eligibility (RYE) date. 

2.  The deceased Soldier entered service on 8 June 1985.  He served in an active duty and then in an inactive Army Reserve status until his death on 1 June 2005.  The Soldier did not die on active duty nor while performing duty in an inactive duty status.  The Soldier was a commissioned officer who served in the Judge Advocate General Corps throughout his career.

3.  On 1 June 2005, the Soldier died in Florida. 

4.  On 2 June 2005, electronic records show a casualty assistance representative from the 88th United States Army Reserve Regional Readiness Command, the deceased Soldier's highest headquarters, telephonically notified HRC-St. Louis of the Soldier's death. 

5.  On 17 July 2005, electronic records show the applicant, the deceased Soldier's former spouse and custodial guardian of their two minor children, called HRC-St. Louis and notified the center that her former spouse had died. 

6.  On 13 October 2005, HRC-St. Louis issued a notification of eligibility for retired pay at age 60 or the 20-year letter to the deceased Soldier.  The 20-year letter shows the deceased Soldier completed the required years of qualifying service and that he was eligible for retired pay on application at age 60.  

7.  On 8 June 2006, HRC-St. Louis published a chronological statement of the deceased Soldier's retirement points on HRC Form 249-2-E (Chronologicial Statement of Retirement Points).  The statement shows that the deceased Soldier completed exactly 20 years of qualifying service on 7 June 2005.

8.  On 1 September 2006, electronic records show that a representative from HRC-St. Louis entered an administrative note showing that the 20-year retirement letter was issued erroneously to the Soldier because HRC-St. Louis was not notified of the Soldier's death until 1 September 2006.

9.  On 5 September 2006, HRC-St. Louis wrote a letter to the deceased Soldier's sister, his personal representative, stating in effect that the deceased Soldier had not met the 20 years of qualifying service criteria for retirement at age 60.  The deceased Soldier died on 1 June 2005.  He would have reached his 20th year of qualifying service on 7 June 2005.  The letter further states that HRC-St. Louis did not receive notification of the Soldier's death; therefore, the center automatically generated the 20-year letter issued on 13 October 2005.

10.  The applicant, the deceased Soldier's former spouse and custodial parent of his two minor children, provided a personal statement, which states in effect that she wants the Soldier's record changed to show he did have 20 years of qualifying service.  She states the deceased Soldier did earn the minimum number of retirement points during the eligible year from 8 June 2004 through 7 June 2005, but that he died 6 days prior to the end of the qualifying year.  The applicant further states the reason he did not complete the qualifying year was due to his death.  She also states she wants his service record corrected in order that his two minor children may receive survivor benefits. 

11.  The applicant provided the final divorce decree, dated 12 December 1997, between herself and her former spouse, which shows they shared custodial responsibilities of the two minor children.  She further provided court orders, dated 25 October 2005, showing she is the appointed guardian of the property of her two minor children.

12.  Section 12731(d) of Title 10, U. S. Code, states that the Secretary concerned shall notify each service member 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) of Title 10, USC states that a service member's 20-year retirement eligibility letter once published 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 of misrepresentation of the person.    

13.  Public Law 95-397, the Reserve Component SBP (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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

14.  Title 10, U. S. Code, section 1448(f)(2) states that, in the case of an eligible member who dies before being notified under section 12731(d) of Title 10 that he completed the years of qualifying service required for eligibility for the RCSBP, or if the member dies during the 90 day period beginning on the date he receives notification under section 12731(d) that he has completed the qualifying years of service for eligibility for the RCSBP, the Secretary concerned shall pay an annuity to the dependent child(ren) of a Soldier, if there is no surviving spouse or if the Soldier's surviving spouse subsequently dies.  

15.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components Soldiers.  It explains that retired pay is pay granted Soldiers and former Reserve components Soldiers who have completed 20 or more years of qualifying service. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her former spouse did complete 20 years of qualifying service prior to his death 6 days before his 20th-year (RYE) date.  The Soldier died on 1 June 2005 and would have attained his 20th year of eligible service in the United States Army Reserve on 7 June 2005, if he had lived.  The applicant further contends that her former spouse had earned the minimum number of retirement points (50) during the year 8 June 2004 through his death on 1 June 2005.  She contends that if he had lived, he would have successfully completed the full year; therefore, he would have been fully eligible for retirement pay at age 60. 

2.  There is sufficient evidence to show that HRC-St. Louis was notified on two separate occasions that the Soldier had died and the date of his death.  HRC-St. Louis personnel admit to erroneously preparing and publishing a notification of eligibility for retired pay at age 60 otherwise knows as the "20-Year Letter" on 13 October 2005.  On 5 September 2006, nearly 10 months after the 20-year letter was published, HRC-St. Louis wrote a second letter to the deceased Soldier's personal representative, his sister, stating the deceased Soldier was not eligible for the previously published 20-year letter due to his death 6 days before his RYE date anniversary.  Section 12738(a) of Title 10, USC states that a service member's 20-year retirement eligibility letter once published 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 of misrepresentation of the person.  Therefore, since there is no evidence or indication of fraud or misrepresentation, the FSM's 20-year notification letter dated 13 October 2005 should be honored.

3.  The divorce decree submitted by the applicant, the former spouse with custody of their two minor children, shows the deceased Soldier has more than adequately attended to the physical and financial well being of his minor children. There is sufficient evidence to show that had he lived he would have complied with regulatory guidance and public law electing RCSBP Coverage Option C electing that a beneficiary receives an annuity immediately upon his death even if before age 60.  







BOARD VOTE:

__RD ___  __CD ___  __EM___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

	a.  that the 13 October 2005 Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) be accepted by the appropriate officials at Human Resources Command-St. Louis as entitling the FSM to retired pay at age 60; and

	b.  that the minor dependents be paid the RCSBP annuity as provided for by law.

	





_____Richard Dunbar________
          CHAIRPERSON




INDEX

CASE ID
AR20070002464
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070927
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
135.0200
2.
137.0100
3.

4.

5.

6.