IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090014735 


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 the records of her deceased husband, a former service member (FSM), be corrected to show he is entitled to retired pay, that he applied for participation in the Survivor Benefit Plan (SBP), and that she is entitled to SBP and any and all monies and benefits based on these corrections.

2.  The applicant states that when her husband, the FSM, tried to retire at age 60, his records did not properly reflect his total qualifying service.  He received no help getting his service and retirement points straight and died before he could do so.

3.  The applicant provides copies of their marriage certificate, the FSM's death certificate, a 1956 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a 1975 Notification of Eligibility for Retired Pay at Age 60 (20-year letter), a 3 January 1984 Reserve Components Personnel and Administration Center (DARP) Form 249 (Chronological Statement of Retirement Points), a 23 April 1987 DD Form 4 (Enlistment/Reenlistment Agreement - Armed Forces of the United States), a 20 March 1993 request to correct the FSM's record, a 26 February 1993 DARP Form 2652-1 (Election of Options), a 13 April 2009 letter to Reserve Components Personnel and Administration Center, an 11 May 2009 letter from U.S. Army Human Resources Command (HRC), an 11 May 2009 U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), and pages of diverse documents from his service record.


CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 5 September 1934.  He served on active duty from 1954 through 1956 and in the U.S. Army Reserve (USAR) continuously from 1956 through 1990.

2.  A 20-year letter, dated 31 January 1975, shows the FSM had completed 20 years of qualifying service for receipt of retired pay at age 60.  This letter does not address the issue of survivor benefits inasmuch as there was not yet a Reserve Component Survivor Benefit Plan (RCSBP).

3.  The FSM continued in an active Reserve status for an additional 10 years and in a non-active status for 6 years.

4.  The 3 January 1984 statement of retirement points contained in the FSM's official military personnel file (OMPF) incorrectly shows the FSM's period of service as 30 September 1967 through 29 September 1982 [15 years] with 1,078 total retirement points.

5.  A DARP Form 1984 (Reenlistment/Extension Worksheet), dated 23 April 1987, shows in item 6 that the applicant had a total of 16 qualifying years of service.

6.  On 11 May 1987, the applicant was granted authority for an immediate reenlistment and advised of his options as to the number of years he might elect. 

7.  In early 1993, the U.S. Army Reserve Personnel Center (ARPERCEN) notified the FSM that his enlistment contract had expired on 22 April 1990.  Due to his number of years of service, the FSM had the option of transferring to the Retired Reserve or being discharged.  This correspondence makes no reference to an RCSBP election.

8.  An ARPC Form 2497-2 (Paper Record Close-out) states that "ARPERCEN has performed all possible research and determined from the data base that this individual is retired effective 19930730 [30 July 1993] from the active or reserve force."

9.  The FSM completed a DARP Form 2652-1, dated 26 February 1993, requesting transfer to the Retired Reserve without a retirement ceremony.

10.  On 20 March 1993, the FSM requested that ARPERCEN update his records to show he served on active duty for 2 years commencing on 7 October 1954 and that he spent 28 years in the active Army Reserve.  He stated that he had 30 qualifying years for retirement.  He noted that his copies of his records documented only 16 of his 30 years of service.

11.  The OMPF copy of the above letter is stapled to the documents related to his being retired in 1993.  However, there is no response in the OMPF to the issues raised in the FSM's letter.

12.  The FSM turned 60 and became eligible to receive retired pay on 5 September 1994.  He passed away on 4 April 2008.

13.  On 13 April 2009, the applicant's counsel, a veterans service officer, requested that HRC correct the FSM's records to show he had qualifying service for receipt of retired pay.

14.  On 11 May 2009, HRC responded to the inquiry stating the FSM's records had been corrected and a statement of service and summary of points was enclosed.  The ARPC Form 249-E shows 30 qualifying years of service with 6 additional non-qualifying years of service (covering the period from 8 October 1954 through 22 April 1990) and an accumulation of 2,931 total retirement points. 
It also stated that since no SBP election form had been completed at the time he received his 20-year letter, the applicant (FSM's widow) was not entitled to the SBP.  It was recommended that the applicant apply to this Board for relief.

15.  An electronic mail message states that a review of the pay records at the Defense Finance and Accounting Service (DFAS) found no reference to the FSM's social security number.

16.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.

17.  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.  One option was to elect to decline enrollment at the time but to elect coverage at age 60 when the RCSBP automatically rolls into SBP coverage.

18.  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 of SBP that provided less than maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that when her husband, the deceased FSM, requested to retire at age 60, his records did not properly reflect his total qualifying service.  He received no help getting his service and retirement points straight and died before he could do so.

2.  The FSM was issued a 20-year letter in 1975 and continued to serve for an additional 16 years.  He was transferred to the Retired Reserve on 26 February 1993, 3 years after his last Reserve enlistment contract expired.

3.  Once the FSM received his 20-year letter, the Army had no choice but to afford him retired pay at age 60, even if he had less than 20 years of creditable service.  The 20-year letter (unless obtained by fraud) guarantees that benefit.

4.  From the FSM's 1993 request to correct his period of creditable service from  16 years to 30 years, it appears that there was a question, at least in the FSM's mind, that he was not being shown to qualify for retired pay.  This assumption on his part is borne out by the 1984 ARPC Form 249 showing a period of service of only 16 years and the 1987 DARP Form 1984 that shows that out of 30-plus years, he has only 16 qualifying years.  The correction of the FSM's records showing his total period of creditable service and total retirement points was not accomplished until May 2009.

5.  Why the FSM never applied for retired pay when he turned 60 cannot be determined.  However, from the applicant's current request, it appears that they may have been under the impression that, since no correction had occurred since 1993, he was somehow not entitled to retired pay.

6.  It is reasonable to assume the FSM believed his records needed to be accurate before he applied for retired pay.  Had ARPERCEN answered the FSM's 1993 correspondence and corrected his record to show his actual 30 years of qualifying service, this case would probably not be before the Board now.

7.  The 11 May 2009 HRC letter is correct, the FSM did not file an RCSBP election in 1975 when he received his 20-year letter.  The RCSBP did not exist in 1975.

8.  Had the FSM formally applied for retired pay at age 60, Public Law 99-145 required his spouse's concurrence in the SBP election.  This requirement creates what amounts to a right for the applicant to at least have an input into the SBP decision.
9.  From the applicant's current request, it is reasonable to assume that they would have elected full spouse coverage.

10.  Therefore, based on the above facts and findings, it is appropriate to correct the records to show:

	a.  the FSM was entitled to receipt of retired pay at age 60 based on 30 qualifying years of service and 2,931 retirement points;

	b.  he elected to receive retired pay effective 5 September 1994 and was transferred to the Retired List at that time;

	c.  the FSM elected to enroll in SBP with full coverage for his wife effective 5 September 1994 with the required SBP withholdings;

	d.  that effective upon the FSM's death, his spouse became entitled to receipt of SBP; 

	e.  that any and all accrued monies due the FSM and/or his spouse be paid at this time; and

	f.  DFAS should perform an audit of the FSM's records to determine retired pay due from 5 September 1994, less coverage for SBP coverage from that date to the date of his death on 4 April 2008, and determine the correct amount of SBP benefits due his widow from that date.

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 to show:

	a.  the FSM was entitled to receipt of retired pay at age 60 based on 30 qualifying years of service;

	b.  the FSM elected to receive retired pay effective 5 September 1994 and was transferred to the Retired List at that time;

	c.  the FSM elected to enroll in SBP with full coverage for his wife effective 5 September 1994 with the required SBP withholdings;

	d.  effective upon the FSM's death, his spouse became entitled to receipt of SBP;

	e.  that any and all accrued monies due the FSM and/or his spouse be paid at this time; and

	f.  that DFAS should perform an audit of the FSM's records to determine the correct amount of retired pay due from 5 September 1994, less coverage for SBP to the date of his death on 4 April 2008, and determine the correct amount of SBP benefits due his widow from that date.



      ____________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)                                         AR20090014735



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ABCMR Record of Proceedings (cont)                                         AR20090014735



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