BOARD DATE: 20 August 2009
DOCKET NUMBER: AR20090004393
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 payment, as the surviving spouse, of the retired pay her deceased husband, a former service member (FSM), would have received from his 60th birthday until the date of his death. She requests that the date of his 20-year letter be adjusted to authorize his entitlement to retired pay.
2. The applicant states her husband did not receive a 20-year letter by the date of his 60th birthday. She states that when he inquired about retired pay on his
60th birthday he was told he had not accrued 20 qualifying years of service. After the death of her husband an audit of the FSM's records determined that he did have 20 qualifying years of service and was eligible for retired pay on application at age 60.
3. The applicant provides, in support of her application, the FSM's 20-year letter; a Chronological Statement of Retirement Points from the U.S. Army Reserve Personnel Command; and the FSM's death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM had previously served 1 year, 5 months, and 7 days of active enlisted service in the Regular Army. He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 8 November 1967. He served on active duty during the period from 8 November 1967 to 6 September 1979. He served
as a platoon commander in the Republic of Vietnam during the period
31 December 1969 to April 1970 where he was awarded the Silver Star and the Purple Heart.
2. The FSM continued to serve in an active status in the USAR until his transfer to the USAR Control Group (Retired) effective 23 December 1987. He was promoted to major effective 1 November 1980.
3. The FSM was born on 20 April 1943 and turned age 60 on 20 April 2003.
4. The FSM's application for retired and subsequent denial are not available for review.
5. The FSM died on 30 December 2008.
6. A letter, dated 19 February 2009, from the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) notified the now deceased FSM that he had completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60.
7. The reason for the audit of the FSM's records or what prompted a recalculation of his qualifying years of service is not available for review.
8. According to the Defense Finance and Accounting Service (DFAS) the applicant is receiving benefits from the Survivor Benefit Plan effective
1 January 2009.
9. Army Regulation 135-180 states in paragraph 2-3 that a 20-year letter will be issued to the Reserve Component Soldier within 1 year after they complete
20 years of qualifying service for retirement. This letter will be issued by the Commander, Army Reserve Personnel Command (AR-PERSCOM) (now known as HRC-STL) for USAR Soldiers. The letter, once issued, may not be withdrawn or revoked.
10. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service) provides that upon a Soldier's application for retired pay, a computation to determine the number of years of qualifying service, years for percentage purposes, and years for basic pay purposes will be made.
11. Title 10, United States Code (USC), Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.
DISCUSSION AND CONCLUSIONS:
1. The computation of the FSM's service should have taken place when he applied for retired pay in April 2003 (when he turned age 60). However, for reasons unknown an audit was not conducted until almost 6 years later.
2. The 20-year letter issued by HRC-STL shows the FSM was eligible to receive retired pay at age 60.
3. In view of the above, it is appropriate to correct the FSM's record by changing the date of the FSM's 20-year letter to 1 April 2003 and show that he applied for retired pay at age 60 in a timely manner and his request was approved.
4. Payment of monies due based on the above correction are payable to the applicant, the FSM's surviving spouse.
BOARD VOTE:
____x___ ____x__ ___x____ GRANT FULL RELIEF
________ ________ ________ 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the date of the FSM's 20-year letter to 1 April 2003 and to show that he applied for retired pay at age 60 in a timely manner and his request was approved.
2. The Defense Finance and Accounting Service (DFAS) should audit the FSM's pay records and provide the applicant his retired pay from the date he turned
age 60 to the date of his death based on the above corrections.
_______ _ __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.
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