IN THE CASE OF:	

		BOARD DATE:	  16 April 2009

		DOCKET NUMBER:  AR20080011795 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that:  a.) she be awarded retired pay (back pay) for non-regular service at age 60 on behalf of her husband a deceased former service member (FSM); and  b.) she be awarded a Survivor Benefit Plan (SBP) annuity to surviving spouse upon the death of her spouse.

2.  The applicant states that when she applied for RCSBP in November 2007, after the death of her husband, she was told he had never applied for retired pay.  She states that this is not true as she explained in her attached statements.

3.  In a continuation of her DD Form 149, the applicant stated the FSM had made application for retired pay based on his service in the Army National Guard and Army Reserve.  She states he was notified that three years of his service could not be verified and he tried to document the first three years of his service from his own records and records from units in which he had served but was never able to assemble everything he reportedly needed.

4.  The applicant provides a four-page continuation of her DD Form 149 (Application for Correction of Military Record) and those documents identified as Attachments 1 through 15 on the fifth page of the continuation of her DD Form 149.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows that the FSM was born on 18 December 1929.  He served in an enlisted status prior to accepting a commission in the New York Army National Guard.  The FSM was appointed a commissioned officer on        20 September 1953 upon graduation from Officer Candidate School.  

2.  The FSM and the applicant married on 26 January 1957.

3.  The evidence further shows that on 30 November 1971 the FSM was transferred from the New York Army National Guard to the USAR Control Group (Reinforcement).  The FSM was promoted to the rank and pay grade of Colonel, O-6, on 21 January 1979, with a date of rank of 8 November 1978.  At the same time the FSM served the nation as a citizen Soldier, he was a self-employed insurance broker and tax accountant.

4.  On 2 April 1967, the FSM completed a DA Form 1041 (Election of Options Under Retired Serviceman's Family Protection Plan).  In Item 11 of this form, the FSM indicated he did not desire to receive reduced retired pay in order to provide an annuity for his dependents.  This, he indicated, was his original election.  A review of the FSM's service personnel record failed to reveal that a second or subsequent election of options was ever completed by him.  At the time this form was completed, the FSM had completed over 17 years service for basic pay.

5.  On 22 August 1974, the FSM was issued a letter, Subject:  Notification of Eligibility for Retired Pay at Age 60 [20-Year Letter].  In the first paragraph of this letter, it states, ". .  . you will be eligible for retired pay upon application (emphasis added) at age 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 67."

6.  On 23 December 1983, the U.S. Army Reserve Personnel Center (Provisional), St. Louis, Missouri, provided the FSM a letter, Subject:  Attainment of Maximum Service in the Active or Inactive Reserve.  In this letter, the FSM was advised he had completed the maximum years service for his rank and pay grade allowed by law and his removal was mandated by 24 January 1984.  The FSM was provided an option of being transferred to the Retired Reserve or of being discharged.  He was further advised that if he had completed 20 creditable years service for retirement purposes (50 retirement points required for each creditable retirement year) he would be eligible to receive retired pay benefits when he attained age 60, regardless of whether he elected transfer to the Retired Reserve or to be discharged.  On 19 January 1984,the FSM elected to be transferred to the Retired Reserve.

7.  DARP-MSR-R Orders # C-02-911174, prepared by the U.S. Army Reserve Personnel Center, St. Louis, Missouri, on 9 February 1984, show the FSM was reassigned from the USAR Control Group (Reinforcement) to the USAR Control Group (Retired) on 9 February 1984.
8.  The FSM turned age 60 on 18 December 1989.  He died on 20 July 2007.

9.  From the FSM's date of reassignment to the Retired Reserve to the FSM's date of death, there were several announced SBP "Open Seasons" during which the FSM could have submitted an election under the SBP and if he so chose to provide his spouse an annuity under the SBP.

10.  On 26 October 2007, the applicant was provided the necessary forms and instruction to make application for benefits from the FSM's service.  The applicant completed the forms that were provided her and returned them to the Survivor Benefit Analyst, U.S. Army Human Resources Command, St. Louis, for certification and processing.

11.  On 15 November 2007, the applicant received a reply to her inquiry regarding eligibility for survivor benefits and an annuity based on the FSM's service.  In the reply, the applicant was informed that in accordance with Title 10, United States Code, section 12731(a) a person is entitled "upon application" to retired pay computed under Section 12739; however, an individual must apply for his or her retired pay to receive it.  In the reply, the Chief, Transition and Separation Branch, U.S. Army Human Resources Command, St. Louis, advised the applicant that the FSM had not applied for retired pay and thus she was ineligible for a survivor annuity claim.  In addition, the applicant was advised that retired pay benefits were not a part of an estate and therefore could not be inherited.

12.  In the Transaction History in the Total Army Personnel Data Base (TAPDB) are listed summaries of several telephone conversations that transpired between the dates of 21 October 1997 and 28 September 2007.  On 21 October 1997 apparently the FSM called and inquired about his retirement points.  At the time they were unable to determine what retirement points and what documentation the member had and for what retirement years he would like the points to be credited to.  There was no mention of an application for retired pay having been submitted.  At the time the FSM was already both eligible to apply for and to receive retired pay.  On 21 September 2007, after the FSM's death, a representative of the 77th Regional Readiness Command and the widow called and apparently inquired about retired pay and related benefits.  A note is in the file that states, "Soldier never applied for retirement pay."  On 23 October 2007 the applicant was provided the packet containing necessary form to make application for benefits that might be available to her based on the FSM's service. A note is in the file that states, "SM is 77 years old and did not apply for retired 


pay.  Requested record.  Will check for RCSBP benefits."  On 16 November 2007 a notation was made in the file that reads as follows:  "Denial letter sent to widow.  Former Soldier never applied for pay before his death.  Also, retired pay not part of estate."

13.  In the processing of this case, an advisory opinion was requested of the Chief, Personnel Division, Departments of the Army and Air Force, National Guard Bureau, Arlington, Virginia.

14.  On 20 August 2008, the Chief, Personnel Division, Departments of the Army and Air Force, National Guard Bureau, rendered a favorable opinion and recommended the applicant's request be approved based on the applicant's request and the FSM's having over 26 years documented Reserve component service and his placement in the Retired Reserve.  The advisory opinion was provided to the applicant for her acknowledgement and/or possible submission of a rebuttal.  On 2 September 2008, the applicant concurred based on the favorable opinion given by the Chief, Personnel Division.

15.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

16.  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 six years of qualifying service have been performed while a member of a Reserve Component.

17.  The SBP is an insurance plan that pays a Soldier's surviving spouse a monthly payment (annuity) to help make up for the loss of his or her retirement income.  The plan is designed to protect a Soldier's survivors by providing them a continuing source of income in the event of the Soldier's death.  Soldiers who elect to participate in the SBP are required to enroll in and pay a monthly premium for this protection.

18.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992 (but was deferred to 1 April 1992 through 31 March 1993).  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

19.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was again given Army Retirees in Army Echoes.

20.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005 through 30 September 2006.

21.  An ARPC Form 249-E (Chronological Statement of Retirement Points)  dated 8 May 2008 shows the FSM's continuous service from 3 October 1949 to  9 February 1984.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the FSM served in the New York Army National Guard and in the Reserve and in his career attained the rank of Colonel.  He served in the Reserve until 9 February 1984 when he was reassigned from the USAR Control Group (Reinforcement) to the USAR Control Group (Retired).  On 22 August 1974 he was issued a "20-Year Letter" which clearly stated he would be eligible to receive retired pay upon application at age 60.  The FSM attained the age of 60 on 18 December 1989.  The FSM died on 20 July 2007.

2.  The evidence shows that on 2 April 1967, the FSM had elected not to receive reduced retired pay under an earlier program in order to provide an annuity for his dependents.  There is no evidence the FSM ever changed his intentions even though during the period of his service in the Retired Reserve he had three opportunities during SBP "Open Seasons" to do so.

3.  In the time from when the FSM attained the age of 60 [18 December 1989] and the date of his death [20 July 2007], a period of 17 years, there is no evidence he actually applied for retired pay although he was fully eligible to do so.  There is some evidence the FSM was attempting to correct what he perceived as errors in his retirements points computation, apparently with an eye towards applying for retired pay.

4.  In her continuation of her DD Form 149, the applicant stated the FSM had made application for retired pay based on his service in the Army National Guard and Army Reserve.  She states he was notified that three years of his service could not be verified and he tried to document the first three years of his service from his own records and records from units in which he had served but was never able to assemble everything he reportedly needed.  There is no evidence 


in his service records that the FSM was notified that three years of his service could not be verified.  All the FSM's service from the date of his enlistment to the date he was commissioned and to the date he was transferred to the Retired Reserve is intact and well documented.  The ARPC Form 249-E (Chronological Statement of Retirement Points) dated 8 May 2008 shows the FSM's continuous service from 3 October 1949 to 9 February 1984.

5.  The evidence is clear.  The FSM served sufficiently long and met all regulatory requirements to qualify for retired pay as evidenced by his having been issued a "20 Year Letter."  Based on the FSM's service, he merited payment of retired pay and would have received it had he applied for it at any time after he attained age 60.  Even though there is no evidence he actually applied for retired pay but was taking what he perceived to be the appropriate steps in clarifying his service record, moral and equity considerations in this case entitle the applicant to be awarded retired (back pay) on behalf of the FSM.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing that he timely applied to receive retired pay prior to attaining the age of 60 [18 December 1989] and that he was entitled to retired pay from this date until the date of his death [20 July 2007]; and
   
   b.  paying the applicant the FSM's back retired pay as a result of this correction.
   


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 the applicant's request to be awarded an annuity under the SBP.



      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.




Retained verbiage.  Do not delete until case is Boarded.

The evidence shows that on 2 April 1967, the FSM had prematurely or for another purpose elected not to receive reduced retired pay in order to provide an annuity for his dependents.  A review of his service personnel record failed to reveal that he ever completed a second or subsequent election of options under the SBP even though during the period of his service in the Retired Reserve he had three opportunities during SBP "Open Season" enrollment periods to do so.  At the time the FSM's 1967 election was completed, it appears it was the FSM's intention to receive all retired pay due him and to not provide an annuity to his survivors.

3.  Over the 17 years, from the date the applicant attained the age of 60 [18 December 1989] and the date of his death [20 July 2007], the FSM took no action to complete an election under the SBP nor did he apply for retired pay although he was fully eligible to do both.  There is some evidence the FSM was attempting to correct what he perceived as errors in his retirements points computations apparently with an eye towards applying for retired pay.

5.  In her continuation of her DD Form 149, the applicant stated the FSM had made application for retired pay based on his service in the Army National Guard and Army Reserve.  She states he was notified that three years of his service could not be verified and he tried to document the first three years of his service from his own records and records from units in which he had served but was never able to assemble everything he reportedly needed.  There is no evidence in his service records that the FSM was notified that three years of his service could not be verified.  All the FSM's service from the date of his enlistment to the date he was commissioned and to the date he was transferred to the Retired Reserve is intact and well documented.  The ARPC Form 249-E (Chronological Statement of Retirement Points) dated 8 May 2008 shows the FSM's continuous service from 3 October 1949 to 9 February 1984.

6.  Regrettably, there is insufficient evidence that would warrant granting the applicant the full relief she requested - an annuity for her under the SBP and award of retired back pay for non-regular service beginning at age 60 on behalf of her husband.



ABCMR Record of Proceedings (cont)                                         AR20080011795





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ABCMR Record of Proceedings (cont)                                         AR20080011795



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