IN THE CASE OF:	
	
		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090006249 


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, the spouse of the deceased former service member (FSM), requests, through her daughter, in effect, that she receive her deceased spouse's retirement pay and benefits as his surviving beneficiary. 

2.  The applicant's daughter states, in effect, that her father, the deceased FSM, served in the Regular Army from 1942 to 1946.  He served in the U.S. Army Reserve (USAR) from his date of separation from the Regular Army to 1970.  Her mother stayed home to raise 13 kids while the FSM served the Army.  She states the deceased FSM did not officially retire from the USAR or apply for his retirement pay and benefits because he had not requested his 20-Year Letter.  She states the deceased FSM's mental health was impaired and he could not make decisions.  He also did not share USAR retirement information with his wife.  She states that the FSM died on 15 July 1995 leaving his personal finances in a state of disarray.  She sorted through his papers and now asks that all eligible retirement pay and benefits be given to her mother, as she is elderly (age 85) and is in need of financial assistance. 

3.  The applicant's daughter provides, in support of her mother's application, the following documents:

	a.  a statement from applicant, dated 29 August 2009, authorizing her daughter, Paula G. H_____ to act on her behalf; 

	b.  two copies of the FSM's honorable discharge certificates and his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge);
	c.  a certificate, dated September 1991, from the Reserve Officers Association of the United States (U.S.) that shows the FSM was a member for 25 years;

	d.  a copy of the daughter's birth registration showing she was born on 2 February 1955; and  

	e.  a copy of the FSM's death certificate, dated 15 July 1995. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 21 October 1924.

3.  The FSM's military personnel record shows he was inducted into the Army of the United States on 5 April 1943 and entered active duty on 12 April 1943.  He was honorably released from active duty, on 20 June 1946, for the convenience of the government due to demobilization of forces.  He had completed 3 years,   2 months, and 12 days of active service that was characterized as honorable. 

4.  On 21 June 1946, he enlisted in the USAR and continuously served until he was honorably separated due to expiration term of service on 31 March 1953. 

5.  Within a month of 21 April 1953, he enlisted in the USAR and served continuously as an enlisted Soldier until he was appointed as a warrant officer (WO1) on 3 June 1959.  

6.  On 18 January 1961, with 17 years completed for pay purposes, the FSM elected to provide his surviving spouse (the applicant) with one-half of his reduced retired pay when he completed DA Form 1041 (Election of Options under the Uniformed Services Contingency Option Act of 1953).  The FSM also indicated that this was his original election to provide an annuity for his dependents.  

7.  On 18 May 1962, he was promoted to chief warrant officer two. 

8.  On 31 December 1968, the FSM was removed from the active USAR status list and transferred to the USAR Control Group (Retired).  

9.  On 25 March 1975, the FSM was issued his notification letter from the U.S. Army Reserve Components Personnel and Administration Center (RCPAC) stating he was eligible for retired pay at age 60 for he had completed 20 years of qualifying service for nonregular retirement (his 20-Year Letter). 

10.  On 24 October 1984, the FSM observed his 60th birthday.  There is no evidence in the FSM's available military personnel record to show that he applied for retirement pay upon reaching age 60 nor is there a record to show that he applied for the Survivor Benefit Plan (SBP).

11.  On 15 July 1995, the FSM died.  The FSM's death certificate shows his marital status as married.

12.  In the preparation of these proceedings, a member of the Board's staff contacted the Defense Finance and Accounting Service (DFAS).  DFAS confirmed the deceased FSM did not apply for retirement pay.  

13.  Title 10, U.S. Code, section 12731, provides that a person is entitled to nonregular retirement pay, upon application, if the person has attained the applicable eligibility age, has performed at least 20 years of service with the last eight years of qualifying service within the USAR or Army National Guard, and is not entitled, under any other provision of law to retired pay from an armed force.  Application for retired pay must be made to the Secretary of the military department having jurisdiction in which the applicant last served. 

14.  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.  Elections are made by category, not by name.  The laws further provided that retiring members and spouses were to be informed of SBP options and effects and that premium deductions continued after loss of spouse.

15.  Public Law 95-397, the RCSBP, enacted on 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.  
16.  Army Regulation 135-180 (Qualifying Service for Retired Pay -- Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  It explains that retired pay is pay granted to Soldiers and former Reserve Component Soldiers who have completed 20 or more years of qualifying service and reached age 60.  Each qualified individual is responsible for applying for retired pay six months before his or her 60th birthday.  

DISCUSSION AND CONCLUSIONS:

1.  Nearly 19 years after the death of the FSM, his widow, with the assistance of an adult daughter, contends that she is entitled to the FSM's retirement pay and survivor benefits.  The daughter stated on behalf of the applicant, her mother, that her father refused to request his 20-Year Letter and that the USAR had not officially retired him.  She contends that, because of his mental health he refused to make decisions and was distrustful of everyone.    


2.  Based on the evidence of record, the FSM was transferred to the Retired Reserve in 1968 and received his 20-Year Letter in 1975.  Upon reaching age 60 in 1984, the FSM for unknown reasons did not submit an application to start his retired pay.  In not making the application for retired pay, he could not make an election to provide his spouse with an annuity payable upon death. 

3.  A records correction would be equitable in this case.  The FSM honorably served in the Regular Army and the Army Reserve.  His wife supported him most of his military career and raised his 13 children.  He made his original survivor's benefit election in 1961 when he had completed 17 years of service for pay purposes.  The FSM's wife, through her daughter, alleges that he was mentally ill for the last several years of his life, he was paranoid, had been secretive about his Army career, and he was easily angered.  It would be reasonable to presume that had the FSM been competent he would have made timely application for his retirement pay and elected the spouse SBP option.  The FSM's initial survivor benefit election shows it was his intent to provide coverage for his wife. 

4.  As such, it would be appropriate to show that the FSM applied for retired pay on 15 June 1995 to be effective 1 July 1995, that the FSM elected SBP with spouse coverage, and the spouse submitted a DD Form 1884 (Application for Annuity Under the Survivor Benefit Plan, Reserve Component) on 30 July 1995.

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:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM applied for retirement pay on 15 June 1995 and elected SBP Spouse Coverage with the level of coverage at full retired pay, that the FSM’s spouse completed and returned the DD Form 1884 and related documents to the proper office on 30 July 1995 and that all documents were received and processed by the proper office in a timely manner.

2.  The applicant’s mother, the FSM’s widow, is advised that DFAS will collect any SBP costs due. 

3.  The applicant’s mother, the FSM’s widow, will be paid an SBP annuity based upon the above corrections retroactive to 16 July 1995, the date after the FSM’s death.




      _______ _   _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)                                         AR20090006249



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ABCMR Record of Proceedings (cont)                                         AR20090006249



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