IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20080016144 


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 spouse, a former service member (FSM), be corrected to show he completed 20 qualifying years of service for a non-Regular retirement and that she be entitled to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states that the FSM earned 77 points toward retirement for the period 6 November 2007 to 11 July 2008.  He earned 10 of the 15 membership points required for retirement, but died before earning the final 5 points.  Since the FSM died before the end of his anniversary year, 5 November 2008, he failed to achieve 20 years of qualifying service.  The applicant adds that there is no question that if the FSM would have lived, he would have completed this 20th year of service.  Additionally, the applicant notes that if the FSM had realized his medical condition, he would have been eligible to apply for a 15-year medical retirement.  Therefore, denying the applicant survivor benefits would be an injustice.

3.  The applicant provides an Exhaustion of Administrative Remedies memorandum, Certificate of Death, Army National Guard Retirement Points History Statement (RPAS), Record of Proceedings (ROP) on two similar cases, Memoranda of Support from the following:  her Legal Assistance Attorney; The Adjutant General (TAG) with a legal opinion; and the Executive Officer (XO). 


CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he was born on 11 October 1963.  He enlisted in the Army National Guard (ARNG) on 18 September 1987 and, through a series of reenlistments, remained in the ARNG until he died of a heart attack on 11 July 2008.

2.  The applicant's ARNG RPAS shows he completed 19 years, 8 months, and 
6 days of qualifying service for a non-Regular retirement as of the date of his death (11 July 2008).  The statement shows the following:  during the period      18 September 1998 to 31 January 1999 (132 days, when he was placed in the inactive National Guard) the FSM earned 12 Inactive Duty Training (IDT) points, 6 membership points, and 18 retirement points.  From 6 November 2007 to       11 July 2008 he earned 32 IDT points, 10 membership points, and 77 retirement points.  

3.  The applicant provided a ROP on a case approved by the Army Board for Correction of Military Records (ABCMR) in June 2003.  In this case, the deceased FSM lacked about 1 month and 24 days of reaching 20 qualifying years of service for a non-Regular retirement and had earned 66 retirement points during the retirement year ending with his death (2 June 2002).  The Board noted that the FSM earned only membership points beginning 25 July 1981 and ending 21 April 1982 and beginning 22 April 1982 and ending 21 April 1983.  The ABCMR agreed to redistribute excess retirement points to show he earned 50 retirement points during his retirement year ending 21 April 1983.  The correction entitled the FSM to qualify for a 20 year non-Regular retirement and his widow entitlement to the RCSBP annuity.  

4.  The applicant also provided a ROP pertaining to a similar case approved by the Air Force Board for Correction of Military Records (AFBCMR).  In this case, the FSM served a total of 19 years, 7 months and 17 days of active duty and Air Force National Guard prior to his sudden death on 27 April 1998.  The Board stated that since the FSM's death occurred before the end of his retirement/retention year, he could not be credited with a satisfactory year of service to complete his 20th year.  The Board noted that it was not feasible to change the FSM's retirement/retention year after 19 years of service.  Therefore, the AFBCMR agreed to change the time he served in the Delayed Enlistment Program, 28 March 1978 through 9 September 1978, to reserve time and subsequently qualify him for a 20 year retirement and his widow entitlement to an RCSBP annuity.   

5.  The XO provided a supporting memorandum in which he stated that the FSM was a valued member of the unit who served on numerous missions.  He offered that the FSM expected to continue to serve even after his anticipated retirement date of 5 November 2008.  The XO said that the FSM's survivors should not be deprived of this retirement benefits due to his [FSM's] untimely and unfortunate death.  

6.  On 1 August 2008, the paralegal noncommissioned officer for the California ARNG (CAARNG) informed the Board that the FSM's survivors had exhausted their administrative remedies and therefore sought redress through the ABCMR. 

7.  On 26 August 2008, the applicant's Legal Assistance Attorney, CAARNG, explained that the FSM entered the CAARNG on 18 September 1987.  Due to a break in service, his anniversary date was recomputed making him eligible for retirement effective 5 November 2008.  He added that to be entitled to an ARNG retirement you must complete 20 qualifying years of service which consisted of completing each calendar year based on an anniversary date and completing a certain amount of days to be awarded a minimum of 50 points.  The Legal Assistance Attorney said that during the period 6 November 2007 to the date of his death on 11 July 2008, the FSM earned 77 points which made his 20th year a good year.  However, it was not a qualifying year because he failed to complete the 20th anniversary year.  As a result, the FSM earned 10 of the 15 required membership points.

8.  The Legal Assistance Attorney offered that it was significant that the FSM never applied to a medical board nor was he identified as having a disabling medical condition.  He said that the FSM suffered a fatal heart attack.  He opined that had the FSM been diagnosed with a disabling medical condition or known that he had such a condition, he would have applied for and been considered for a medical retirement.  He added that the FSM's unexpected death, due to no misconduct on his part, should not deprive his widow and children from receiving survivor's benefits.  Therefore, he requested that the surplus participation points be redistributed so that the FSM's record reflect the 15 membership points required to establish his eligibility for retirement and his widow's eligibility for the RCSBP.

9.  The major general stated that as TAG for the State of California Army National Guard, he highly recommends favorable consideration in redistributing earned participation points as membership points in order to establish retirement eligibility for the FSM and award survivor's benefits to the FSM's widow.  The TAG said that the FSM fulfilled all the attendance requirements necessary to complete a good year, but did not have a qualifying year because he died prior  to his anniversary date.  He opined that if the applicant had lived 3 months and 24 days longer, he would have successfully met the requirements for a qualifying year and established retirement eligibility.  He added that the FSM's death occurred through no misconduct of his own and there was an inherent unfairness in this, resulting in total forfeiture of survivor's benefits to his family.   

10.  In the processing of this case, an advisory opinion was obtained from Chief, Personnel Division, National Guard Bureau (NGB), Arlington Virginia.  Instead of recommending that the 5 excess retirement points be redistributed to membership points in the retirement year beginning 6 November 2007 and ending 11 July 2008, the Chief, Personnel Division recommended that the FSM be granted a 15-year retirement.  He also recommended that the widow be granted the RCSBP annuity commencing immediately.  

11.  The Chief, Personnel Division, provided a brief synopsis of the FSM's career with the CAARNG.  He offered that the applicant died unexpectedly on 11 July 2008 after accumulating 19 years, 8 months and 6 days of service which was 3 months and 24 days short of reaching retirement eligibility.  He said that the FSM had completed all training and duty requirements to that point and was scheduled to attend military exercises in July and September 2008.  All indications were that the FSM intended to continue serving satisfactorily until his retirement eligibility date.   

12.  He further stated that if the FSM's medical condition had been identified and he was determined to be medically unfit for duty, he would have met the requirements of a 15-year retirement.  The Chief, Personnel Division, offered that the 15-year retirement will provide the same benefits to the FSM's widow as a 20-year retirement in this situation.  He said in either case, the amount of the annuity is based on accumulated retirement points and the total points will remain the same for the 15-year retirement.  

13.  On 9 April 2009, the advisory opinion was forwarded to the applicant for her concurrence and/or comments, but she failed to respond.

14.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component 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.  

15.  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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

16.  Title 10, U. S. Code, section 1448(f)(1)(A)(i) states that the Secretary concerned shall pay an annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies before being notified that he has completed the years of service required for eligibility for reserve component retired pay.

17.  Title 10, U.S. Code, Chapter 1223 (Retired Pay for Non-Regular Service), section 12731b (Special rule for members with physical disabilities not incurred in line of duty) provides, in pertinent part, that in the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of entitlement to retirement pay, determine to treat the member as having met the required 20 years of qualifying service.  The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay if the member has completed at least 15 years, and less than 20 years, of qualifying service.

18.  National Guard Regulation 680-2 (Automated Retirement Points Accounting System) prescribes procedures for recording retirement points and years of credible service for non-Regular retirement.  The regulation states that Soldiers must earn a minimum of 50 points from all sources in a retirement year to have that year creditable towards verification of 20 years qualifying service for retired pay.  If the Soldier serves less than a full year, he must earn the minimum number of points indicated in Table 2-4 for that period to be creditable for retirement.

19.  Table 2-4 shows the "From" and "Through" date and the minimum points required to receive credit for a partial year.  The table shows, in pertinent part, that from 132 through 138 days of service, the minimum retirement points required for that period to be considered as a partial year is 19.

20.  Department of Defense Instruction 1215.7 (Service Credit for Reserve Retirement), paragraph 6.1.5.2. states that when, as a result of a break-in-service, a partial year occurs, the Service member must meet the minimum retirement point requirement set out in this Instruction for the member's service to be credited as a partial year towards a qualifying year.  A partial qualifying year is any period less than 12 full months in which the retirement points credited to a member, when computed proportionally, are equal to or greater than 50 points.  Calculation of credit for a partial year shall be made according to the schedule at enclosure 2.  Paragraph 6.1.5.3. states that partial years of qualifying service may be combined and credited towards total qualifying service.  Enclosure 2 states that 132 days in an active status requires a minimum of 19 points.

DISCUSSION AND CONCLUSIONS:

1.  As verified by the CAARNG TAG, the XO, and the applicant's Legal Assistance Attorney, the FSM was actively serving with the CAARNG when he died on 11 July 2008 of a heart attack.  Based on his service in the CAARNG, as documented on his RPAS, it is apparent that the FSM would have successfully completed 20 qualifying years of service for a non-Regular retirement.  Unfortunately, he lacked 3 months and 24 days of reaching the requirement due to his unexpected death.  The statute requires a full 20 qualifying years be completed to be eligible for retired pay at age 60.  

2.  The Chief, Personnel Division, NGB, recommends that the FSM be granted a 15-year retirement.  Although the FSM died of a heart attack, there is no medical evidence to show that he was medically unfit and eligible for a 15-year retirement.  Therefore, notwithstanding NGB's recommendation, it is presumed that the FSM met the medical retention standards and was not eligible for a 15-year retirement at the time of his death. 

3.  The FSM had earned 77 retirement points during the partial retirement year ending with his death.  Therefore, it would be equitable to correct his records to show he completed a full 20 qualifying years for retired pay.  During the partial retirement year 18 September 1998 to 31 January 1999, a total of 132 days, the FSM received 18 retirement points, just 1 point short of the total points he needed in order to receive partial credit for that retirement year.  Therefore, by redistributing 1 excess retirement point from the 77 points he earned just prior to his death would credit him with 19 retirement points and a partial year.  As a result, he would be credited with an additional 4 months and 13 days of creditable service for retired pay and subsequently entitled to a 20 year non-Regular retirement.  

4.  The above correction would entitle the FSM to receipt of his notification of eligibility to receive retired pay at age 60 (his 20-year letter).  By law, the applicant would then automatically be entitled to the RCSBP annuity.  

5.  In view of the foregoing, the FSM’s records should be corrected 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.  redistributing 1 of the FSM's excess retirement points to provide him with a partial qualifying year of 4 months and 13 days of service for retirement year     18 September 1998 to 31 January 1999; 

     b.  issuing him a 20-year letter showing he is entitled to Reserve retired pay at age 60 as a result of the above correction; and

   c.  as a result of the above corrections, the applicant is entitled to the RCSBP annuity retroactive to the day after his death on 11 July 2008.



      _______ _   _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.



ABCMR Record of Proceedings (cont)                                         AR20080016144





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ABCMR Record of Proceedings (cont)                                         AR20080016144



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