IN THE CASE OF:	  

		BOARD DATE:	        02 APRIL 2009

		DOCKET NUMBER:  AR20080013189 


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 the records of her deceased husband, a former service member (FSM), be corrected to show that he applied for retired pay and that she is entitled to receive an annuity from the Reserve Component Survivor Benefit Plan (RCSBP) as the FSM's designated beneficiary.

2.  The applicant states that an injustice was done to both her and her late husband.  She states that the denial letter from the Transition and Separations Branch stating that her husband did not properly execute a DD Form 1883 designating her as the beneficiary may or may not be true as there is no way to make that determination.  She states that the absolute inconsistent, untrue, and mishandling of information when her husband was trying to complete his retired pay packet was the injustice in this case.  The applicant states that her husband would think it was ludicrous if he knew that she was not receiving his retired pay because the military says he did not complete a DD Form 1883.  She states that at the time that he died, her husband was still trying to prove his military service.  She states that her late husband should have been receiving retired pay for almost 6 years prior to his death, but instead he was put through hours and hours of stressful telephone calls requesting information and sending information that he had to hunt down.  The applicant states that her late husband continued to request and send in paperwork to prove his military service and the paperwork always got lost or misdirected.



3.  The applicant goes on to state that another injustice imposed on her is the statute of limitations requiring a form to be completed within 6 years after the date the right for payment first accrued.  She states that her husband worked so many long and frustrating hours trying to receive his retired pay.  She states that she even has a form showing that he was trying to receive copies of his records 1 day prior to his death and that he had no retirement points, yet he was furnished a 20-year letter.  She states that he was told to send paperwork to St. Louis, Missouri, numerous times and eventually the paperwork had to be sent by certified mail after being told three to four times that the paperwork was lost.  The applicant concludes by stating that after 21 years of honorable service to his country, neither she nor her husband should be punished for the errors that should not rest on the shoulders of her late husband.

4.  The applicant provides in support of her application, copies of the FSM's Certificate of Death; a copy of the CHAMPUS Handbook cover, dated October 1994; a copy of a Chronological Statement of Retirement Points, dated 2 July 1999; a copy of an unaddressed envelope from the Department of the Army, U.S.  Army Reserve Personnel Command (ARPERSCOM), postdated 21 July 1999; a copy of an ARPERSCOM contact listing; a copy of a facsimile addressed to the FSM from a sergeant at the Office of the Adjutant General, dated 1 March 2001, notifying the FSM that he was unable to find any retirement points prior to 1967; copies of his National Guard Bureau (NGB) Retirement Credit Record; copies of his NGB Form 22 (NGB Report of Separation and Record of Service), dated
1 January 1985; a copy of an envelope addressed to the FSM from the State of California - Military Department, Office of The Adjutant General, postdated
1 March 2001; and copies of a memorandum addressed to the FSM from the Department of the Army, Headquarters, California Army National Guard (CAARNG), dated 7 March 2001, regarding the FSM's request for National Guard service documents.

5.  The applicant also submits in support of her application, copies of the FSM's NGB Form 22, dated 23 August 1968; copies of the FSM's Statement of Service, dated 3 May 1971; copies of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 15 September 1964; a copy of an envelope addressed to the FSM from the State of California - Military Department, Office of The Adjutant General, postdated 7 March 2001; a copy of a U.S. Postal Service Certified Mail Receipt, dated 6 September 2006; a copy of a National Personnel Record Center (NPRC) Signature Verification page; a letter from the NPRC addressed to the FSM, dated 26 April 2007, forwarding the FSM his Certificate of Military Service; a letter from the NPRC addressed to the 
FSM, dated 18 May 2007, notifying him that his 20-year letter was prepared in 


the original form only; a copy of an envelope from the NPRC addressed to the FSM, postdated 17 May 2007; undated handwritten notes pertaining to SBP and retired pay benefits; and electronic mail forwarded between the FSM's daughter and the CAARNG, dated 18 June and 22 June 2007, regarding the FSM's retired pay.

6.  The applicant further submits in support of her application copies of the FSM's Notification of Eligibility for Retired Pay at Age 60, dated 6 July 1984; a letter from a U.S. Army Human Resources Command (USAHRC) Annuity and Retirement Analyst, addressed to her, dated 9 July 2007, enclosing information and requesting information for the purpose of determining her eligibility for benefits; a copy of her DD Form 2656-7 (Verification for Survivor Annuity), dated 30 July 2007; a copy of her Certificate of Registry of Marriage to the FSM; a copy of her Direct Deposit Sign-Up Form; a copy of her Withholding Certificate for Pension of Annuity Payments, dated 30 July 2007; a copy of a Federal Express Priority Overnight receipt, dated 30 July 2007; a copy of a letter addressed to her from the USAHRC Chief, Transition and Separations Branch, dated 29 August 2007, notifying her that she is ineligible for an SBP annuity and a copy of an envelope, postdated 31 July 2008; a copy of the FSM's Chronological Record of Military Service, dated 22 August 2007 and a copy of an envelope, postdated 5 September 2007; a copy of Letter Orders Number AD 76-Calif, dated 27 February 1964; a copy of a certificate transferring the FSM to the Retired Reserve; a copy of the FSM's honorable discharge from the CAARNG; a copy of a certificate commissioning the FSM to the rank of major in the CAARNG; copies of training awards and certificates; a copy of a certificate commissioning the FSM to the rank of second lieutenant in the CAARNG; a copy of the FSM's State Officer Candidate School Diploma; a copy of the FSM's Honorable Discharge Certificate; an undated letter from her addressed to the Department of the Army Review Boards Agency (ARBA) Support Division; and a copy of a letter addressed to her from ARBA dated 5 August 2008 regarding the status of her application and an envelope from the ARBA Support Division postdated 11 August 2008.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born in Mountain Air, New Mexico, on 18 August 1941 and he enlisted in the CAARNG for 6 years on 22 November 1963.  He was ordered to active duty on 16 March 1964 and he successfully completed his training as a heavy weapons infantryman.  He was honorably released from active duty on 15 September 1964, upon completion of his required training and he was transferred to the CAARNG to complete his service obligation.  

2.  The applicant and the FSM married on 5 December 1964.
3.  On 23 August 1968, the FSM was honorably discharged to accept a commission as a second lieutenant in the CAARNG.  He was commissioned as a second lieutenant in the CAARNG on 24 August 1968.  He was promoted through the ranks to major as a member of the CAARNG.

4.  On 6 July 1984, the NGB Chief, Army National Guard Personnel Center, forwarded the FSM a Notification of Eligibility for Retired Pay at Age 60.  The notification reads that an SBP Summary was also forwarded to the FSM.

5.  After completing 21 years, 1 month, and 9 days of qualifying service for retired pay purposes, the FSM was honorably discharged from the CAARNG on 1 January 1985.  He was transferred to the USAR Control Group (Retired) and placed in the Retired Reserve on 2 January 1985.

6.  There is no indication in the available records that shows that the FSM made a Reserve Component SBP (RCSPB) election at the time of his retirement, 

7.  The available records show that on 2 July 1999 ARPERSCOM forwarded the FSM a Chronological Statement of Retirement Points.  The summary reflects that no summary points existed.  In a facsimile, dated 3 January 2001, from the Directorate of Military Personnel, Office of the Adjutant General, the FSM was informed by customer services of their inability to find any retirement points prior to 1967 and on 7 March 2001, the CAARNG Chief, Enlisted Personnel Management Branch forwarded him service documents pertaining to his National Guard service.

8.  The FSM reached age 60 on 18 August 2001.

9.  While the available records show that the FSM was forwarded copies of his  service documents per his request on 26 April 2007, the available records do not show that he ever made an application for his retired pay on or after his 60th birthday.

10.  The FSM died on 15 May 2007.

11.  On 18 May 2007, in response to an inquiry made by the FSM, an NPRC Archives Technician notified the FSM that the 20-year letter is prepared in the original only; therefore, he could not be furnished a copy and that the 20-year letter was not made a matter of record.


12.  The available records indicate that on 30 July 2007, the applicant forwarded to the USAHRC Annuity and Retirement Analyst documents in support of a request to obtain benefits from the FSM's military service.  

13.  In a letter to the applicant, dated 29 August 2007, from the USAHRC Chief, Transition and Separations Branch, the applicant was informed that the RCSBP was established to provide coverage for the survivor of a Reserve Soldier who has completed 20 years of service for retired pay.  She was informed that the Soldier is offered the opportunity to participate in the plan upon completion of 20 years of qualifying service and that they have 90 days from the date they receive their 20-year letter to enroll in the program.  She was further informed that if the service member fails to enroll within the 90-day period, the service member is barred from enrolling until applying for retired pay at age 60.  The applicant was told that records do not reflect that the FSM made an election for SBP and that since her late husband did not properly execute a DD Form 1883 designating her has the beneficiary, she is not eligible for an annuity.  The USAHRC suggested that she apply to this Board if she believed that the FSM's military service meets the criteria for eligibility for retired pay benefits.

14.  Information on the USAHRC - St. Louis integrated Personnel Electronic Records Management System indicates that the FSM's retirement points issue still has not been resolved.

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

16.  Public Law 95-297, dated 30 September 1978, established the RCSBP to offer survivor protection during gray area service (between the time a member qualifies for retirement but is not yet age 60 and in receipt of retired pay).  It provided, in effect, that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Enrollment for Reservists was required within 90 days of receiving their notice of eligibility (20-Year Letter).   

17.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.


18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the FSM's records should be corrected to show that he applied for retired pay and that she is entitled to receive an SBP annuity as his beneficiary.

2.  The available evidence of record shows that the FSM failed to apply for retired pay in a timely manner.  However, he served honorably for over 20 years and earned his retired pay.

3.  His spouse helped him earn his retired pay and should be afforded the benefits associated with the many years of dedication and sacrifice necessary to attain retired pay benefits.

4.  Furthermore, it is not reasonable that a person who served for 20+ years, earned retirement eligibility, and attempted to timely obtain the proper information to apply for retired pay benefits months before reaching age 60 would intentionally fail to apply for his/her retired pay unless he/she was being misinformed regarding his/her retirement points and the availability of his/her
20-year letter as the available records indicate.

5.  Therefore, it would be equitable to correct the records to show that the FSM timely applied for retired pay to be effective 1 September 2001 and that he (i.e., his estate) be paid retired pay from 1 September 2001 until the date of his death.

6.  Additionally, since the records indicate that the FSM was misinformed regarding his eligibility to receive retired pay and since the law requires a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse SBP coverage, the applicant is also entitled to retroactive SBP coverage.  

7.  A copy of all the documents (e.g., DD Form 214 and Retirement Credits Record) that will aid in reconstructing the FSM's retirement points history will be forwarded to USAHRC - St. Louis by ARBA.

8.  In view of the foregoing, it would now be in the interest of justice to correct the FSM's records as recommended below.

BOARD VOTE:

___X_____  ___X_____  ___X_____  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.  reconstructing the FSM's retirement point history;
   
   b.  showing that the FSM timely applied for his retired pay and that he (i.e., his estate) be paid retired pay from 1 September 2001 until the date of his death on 15 May 2007;
   
   c.  showing the FSM made a timely election to participate in the SBP for spouse coverage, full base amount; and
   
   d.  paying to the applicant the SBP annuity retroactive to the day after the FSM’s death on 15 May 2007.



      ________XXX______________
       	   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.

ABCMR Record of Proceedings (cont)                                         AR20080013189



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ABCMR Record of Proceedings (cont)                                         AR20080013189



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