IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090011655
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, as a legal representative for the spouse of a deceased former service member (FSM), requests, in effect, a 20-year Reserve retirement for the FSM.
2. The applicant states the FSM's military duty time equals 20 qualifying years, the FSM earned the required 20 years of qualifying military Reserve service, and the FSM's family deserves to receive survivor benefits and other appropriate entitlements. He indicates the FSM at the time of his death compiled nearly 20 years of recorded military service and although there is no direct evidence to submit, throughout his military career, the FSM had accomplished training and operational requirements that had not been accounted for on his military records. He claims this non-accounted military service time would have bridged the gap of seven retirement points to provide the FSM with a completed 20 year military service career.
3. The applicant provides a letter of appointment, dated 15 June 2009, from the spouse of the FSM; the FSM's death certificate; a statement of the FSM's accomplishments as a drilling Individual Mobilization Augmentee for the National Guard Intelligence Center; and a retirement points summary in support of his application.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 2 May 1964. Having prior commissioned service in the Regular Army, the FSM was appointed a Reserve officer in the U.S. Army Reserve (USAR) on 30 September 1991. He was promoted to lieutenant colonel on 26 August 2004.
2. While in the USAR, the FSM died on 24 September 2008.
3. In support of his claim, the applicant provided a detailed statement of the FSM's accomplishments as a drilling Individual Mobilization Augmentee for the National Ground Intelligence Center from 11 September 2000 until his death.
4. The FSM's Chronological Statement of Retirement Points, dated 5 January 2010, shows he completed 19 years, 4 months, and 7 days of qualifying service for retired pay. The statement also shows he earned a total of 61 points during retirement year ending (RYE) 30 September 1995 (19 extension course points, 15 membership points, and 27 active duty points) and he earned 43 points during RYE 30 September 1996 (15 extension course points, 15 membership points, and 13 active duty points).
5. Title 10, U.S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least
60 years of age; had performed at least 20 years of qualifying service the last six years of qualifying service while a member of a Reserve Component, except
that in the case of a person who completed the service requirements before
5 October 1994, the number of years of such qualifying service under this paragraph shall be eight. The National Defense Authorization Act of 2005 changed the law, effective 27 April 2005, by removing a minimum Reserve Component service requirement.
6. 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 under section 12731(d) of this title that he has completed the
years of service required for eligibility for reserve component retired pay.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows the FSM had only completed 19 years, 4 months, and 7 days of creditable service for a non-regular retirement at the time of his death. However, during an otherwise nearly continuous record of successful
completion of qualifying years for a Reserve retirement, the FSM earned only 43 retirement points during RYE 30 September 1996. That lends credence to the applicants contention that some of the FSMs service may not have been fully accounted for.
2. The FSM earned 61 retirement points during RYE 30 September 1995. He earned 43 retirement points during RYE 30 September 1996. Since the FSM was only 7 points shy of qualifying for retired pay, as a matter of equity, it would be appropriate to redistribute 7 retirement points he earned during RYE
30 September 1995 to RYE 30 September 1996 to make it a qualifying year for retirement.
3. Since the FSM died before he could have received a notice of eligibility for retired pay at age 60, it would be appropriate at this time to issue such notification for the FSM. Upon issuance, and under Title 10, U.S. Code, section 1448(f)(1)(A)(i), the FSM's surviving spouse would be eligible for Reserve Component Survivor Benefit Plan coverage based on verification of the FSM's qualifying service beginning on the day after his death.
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 7 retirement points the individual earned during RYE
30 September 1995 to RYE 30 September 1996;
b. issuing for the FSM a notice of eligibility for retired pay at age 60; and
c. paying to the FSMs spouse the RCSBP annuity based upon Title 10, U.S. Code, section 1448(f)(1)(A)(i).
_______ _ _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) AR20090011655
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