RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 September 2007
	DOCKET NUMBER:  AR20070003463 


	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

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Larry C. Bergquist

Chairperson

Ms. Marla J. N. Troup

Member

Ms. Ernestine I. Fields

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 her mother's records, a deceased former service member (FSM), be corrected to show that she was eligible for non-regular Army retirement.

2.  The applicant states, in effect, that in 2001, her mother went through the proper steps to request a waiver to extend in the service beyond her 60th birthday so she could reach 20 years for retirement.  She further adds that since her mother was expecting her first retirement check on 1 January 2004, this indicates that her waiver to stay beyond her 60th birthday was accepted and that she has witnesses that her mother made up the time at the armory.  The applicant concludes that her mother should receive all death benefits due to her family for the time she served in the Army and that she should have been buried as a veteran.

3.  The applicant provides copies of the following documents in support of her application:

	a.  The FSM's Certificate of Death.

	b.  The FSM's DD Form 2656 (Data for Payment of Retired Personnel).

	c.  The FSM's DD Form 108 (Application for Retired Pay Benefits).

	d.  The FSM's Chronological Statement of Retired Points.

	e.  The applicant's Certificate of Appointment, from the State of New York Surrogate Court.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that she was born on 27 January 1943 and enlisted in the U.S. Army Reserve (USAR) on 25 June 1977, at the age of 34.  She would reach her 60th birthday on 27 January 2003.  She later requested a series of extensions or reenlistments in the USAR as follows:

	a.  on 25 June 1980, she extended her initial enlistment by 12 months, from 3 years to 4 years;

	b.  on 25 June 1981, she reenlisted for a period of 6 years;

	c.  on 27 June 1987, she reenlisted for a period of 6 years;

	d.  on 17 June 1993, she reenlisted for a period of 6 years;

	e.  on 4 March 1999, she extended her 17 June 1993 reenlistment by 3 months; and

	f.  on 18 May 1999, she reenlisted for a period of 6 years.  This reenlistment established her expiration of term of service (ETS) as 17 May 2005.

2.  On 27 January 2003, the FSM turned 60 years old.  Records show that she had not completed 20 years of creditable service by this date.

3.  The FSM's records do not show that she requested a waiver to stay in the service beyond her 60th birthday.  Additionally, the U.S. Army Reserve Personnel Command, St. Louis, Missouri, has no record of a request for a waiver or approval of such waiver.

4.  On 12 August 2003, the FSM submitted an application for retired pay benefits. There is no record that her request was approved.  

5.  On 12 August 2003, the FSM also completed a DD Form 2656 (Data for Payment of Retired Personnel), indicating in item 28g that she elected not to participate in the Survivor Benefit Plan (SBP) and that she did not have "eligible" dependents under the plan.

6.  U.S. Army Reserve Personnel Center, St. Louis, Missouri, did not send the applicant a 20-year letter or approve her request for retirement since she did not accrue 20 years of creditable service before or on her 60th birthday, 27 January 2003.  Accordingly, she was never placed on the retired list. 

7.  The FSM's ARPC Form 249-2-E (Chronological Statement of Retirement Points) shows that the FSM would have completed 20 years of creditable service on 24 June 2003, beyond her 60th birthday. 

8.  On 27 December 2003, the FSM died one month short of her 61st birthday.

9.  Sections 12731 through 12739 of Title 10, US Code, authorize retired pay for Reserve Component (RC) 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.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more [emphasis added].  The last 6 years must be served as an RC Soldier.

10.  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.

11.  Chapter 7, Department of Veterans Affairs (VA) Pamphlet 80-07-01, states, in pertinent parts, that Reservists and National Guard members, as well as their spouses and dependent children, are eligible for burial in VA National Cemeteries, Inscribed Headstones and Markers, and Burial Flags furnished by the VA if they were entitled to retired pay at the time of death or would have been if they were over age 60. 

12.  Army Regulation 140-111 (U.S Army Reserve Reenlistment Program) prescribes policies, responsibilities, and procedures for the USAR reenlistment program.  Chapter 4 of this regulation covers the waivable and nonwaivable criteria.  Rule A of Table 4-1 identifies waivable reenlistment disqualifications and approval authorities.  It states that a Soldier at age 55 or older and currently not eligible to receive retired pay, or not qualified for retired pay at age 60, but can complete 20 qualifying years of service, or active service, for retired pay by age 60 is authorized an age waiver.  Rule D of Table 4-2 pertains to those Soldiers who are unable to complete 20 qualifying years of service for retired pay by age 60.  This rule further refers to Note 2 which states that "when the Commander, HRC, has determined that there is an implied or actual moral obligation incurred by the USAR to permit the member to remain in the Ready Reserve to qualify for retired pay based on long service in the USAR, the member may be reenlisted." 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she is entitled to correction of her deceased mother's records to show that she was eligible for non-regular Army retirement.

2.  Although there is no evidence that there was an age waiver submitted by the FSM and/or processed by the appropriate chain of command, evidence of record shows that upon executing her 18 May 1999 reenlistment for 6 years, it was the Department's intent to allow the FSM to continue to serve well beyond the time she would have attained 20 years of qualifying service.  It is now determined that this reenlistment action constituted an implied obligation on the part of the USAR for the FSM to complete 20 years of qualifying service. 

3.  In view of the foregoing evidence, it is appropriate to correct the FSM's records to show that she was granted an age waiver on 18 May 1999 and allowed to reenlist for 6 years. 

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if she desires further information regarding VA benefits, the Board recommends she consults with her local VA Office that can best advise her on eligibility and entitlements. 

BOARD VOTE:

__lcb___  __mjnt__  __eif___  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:

	a.  showing that the 18 May 1999 reenlistment contract was processed with approval of an age waiver;

	b.  showing that the retirement year ending on 24 June 2003 reflects completion of 20 qualifying years of service for Reserve retirement with eligibility for a 20-year letter; and

	c.  issuing a 20-year letter for the FSM with appropriate information regarding benefits that may be due the surviving family.



							Larry C. Bergquist
______________________
          CHAIRPERSON



INDEX

CASE ID
AR20070003463
SUFFIX

RECON

DATE BOARDED
20070911
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
136.0400
2.

3.

4.

5.

6.