IN THE CASE OF:	  

		BOARD DATE:	    13 May 2010

		DOCKET NUMBER:  AR20090017731 


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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he retired in the rank of sergeant first class (SFC)/pay grade E-7.

2.  The applicant states her husband passed away on 3 September 1994.

	a.  She was not aware the Defense Eligibility Enrollment Reporting System (DEERS) database had the FSM's pay grade listed as E-6.  She has received assistance from the Department of the Air Force, but the Department of the Army has not been helpful in correcting the matter.

	b.  At some point after 11 September 2001, her name was dropped from the DEERS database; however, this administrative error was recently corrected.  She adds this administrative error caused her to pay additional medical co-pays from her own earnings.

	c.  She states the FSM successfully completed Drill Sergeant School at Fort Lewis, Washington, on 1 July 1967 and he held the rank of SFC/E-7.

	d.  On 27 February 1989, the U.S. Army Reserve Personnel Center Retired Activities Directorate, St. Louis, Missouri, notified the FSM that his eligibility for retirement benefits had been established upon attaining age 60.  The FSM was advised that his records show the highest grade he held was SFC/E-7, he had held this pay grade satisfactorily for at least 185 days, and he would be placed on the Retired List as an SFC/E-7 upon attaining age 60.

	e.  She states she contacted the Defense Finance and Accounting Service (DFAS) and was informed she was receiving a Survivor Benefit Plan (SBP) annuity based on the FSM's correct rank.

	f.  She feels there is a big monetary difference since the wages have gone up from 1989 to the time the FSM would have been 60 years of age in 1999.  She is not sure she is receiving SBP benefits at the correct rate.

	g.  She was reissued a DEERS identification (ID) card in August 2009 and noticed that it shows the FSM's pay grade as E-6.  She was informed that documentation was required from the Army Review Boards Agency so that she may get the FSM's grade in the DEERS database corrected.

3.  The applicant provides copies of the FSM's 20-year letter, certificate of training, ID card, marriage certificate, death certificate, and the identification page from her U.S. passport.

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.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the FSM was inducted into the Army of the United States on 18 June 1959.  His date of birth is recorded as 26 April 1939.  The FSM was honorably released from active duty on 3 June 1961 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.

3.  The FSM and applicant were married on 3 July 1965.

4.  The FSM's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that he was promoted to staff sergeant 
(SSG)/E-6 on 21 May 1965, promoted to SFC/E-7 on 24 February 1967, and administratively reduced to SSG/E-6 on 29 October 1981.

5.  Headquarters, 414th Regiment (Basic Combat Training), Salem, Oregon, Special Orders Number 8, dated 24 February 1967, appointed the FSM to SFC/E-7.

6.  The FSM was honorably discharged from the USAR on 3 June 1969.  He had a break in military service from 4 June 1969 to 10 February 1973.  The FSM enlisted and reentered the USAR on 11 February 1973.

7.  Headquarters, 1st Brigade (Basic Combat Training), 104th Division (Training), Vancouver, Washington, Special Orders Number 13, dated 21 May 1976, promoted the FSM to SFC/E-7 effective 21 May 1976.

8.  Headquarters, 104th Division (Training), Vancouver, Washington, 
Orders 009-086, dated 25 January 1982, administratively reduced the FSM from SFC/E-7 to SSG/E-6 effective 29 October 1981.

9.  Headquarters, 104th Division (Training), Vancouver, Oregon, Orders 083-004, dated 6 September 1985, reassigned the FSM to the USAR Control Group (Reinforcement) in the rank of SSG/E-6 effective 6 September 1985 based on the FSM's request.

10.  U.S. Army Reserve Personnel Center, St. Louis, Missouri, 
Orders D-01-001-001787, dated 15 January 1986, honorably discharged the FSM from the USAR (Ready Reserve) in the rank of SSG/E-6 effective 15 January 1986.

11.  U.S. Army Reserve Personnel Center Retired Activities Directorate, St. Louis, Missouri, memorandum, dated 27 February 1989, notified the FSM that his eligibility for retirement benefits had been established upon attaining age 60.  The FSM was advised that his records show the highest grade he held was SFC/E-7, he had held this pay grade satisfactorily for at least 185 days, and he would be placed on the Retired List as an SFC/E-7 upon attaining age 60.

12.  The FSM's certificate of death shows he died on 3 September 1994.

13.  The Army/Army Reserve DEERS Project Officer was asked to verify the FSM's grade in the DEERS database.  The DEERS project officer verified that the FSM's record has been updated to show he was retired in pay grade E-7 on 3 September 1994.

14.  The DFAS Retired and Annuitant Pay Section, Cleveland, Ohio, was asked to verify information relevant to the FSM's retired pay record and applicant's SBP annuity.  DFAS verified the FSM's pay record shows he was retired in pay grade E-7 on 3 September 1994.  The FSM's pay record also shows he elected SBP on 28 April 1989 with a monthly base amount of $315.17 and that an SBP annuity was being paid to the applicant in the amount of $179.00 monthly.

15.  Title 10, U.S. Code, section 3963 (Highest Grade Held Satisfactorily:  Reserve Enlisted Members Reduced in Grade Not as a Result of the Member's Misconduct), provides that a Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily as determined by the Secretary of the Army.  Subsection b applies to a Reserve enlisted member who:  (1) at the time of retirement is serving on active duty in a grade lower than the highest enlisted grade held by the member while on active duty and (2) was previously administratively reduced in grade not as a result of the member's own misconduct as determined by the Secretary of the Army.  This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after 30 September 1996.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's pay grade in both the DEERS and DFAS databases is incorrect and should be corrected to show he retired in pay grade E-7 so that she may receive her Army benefits and correct SBP annuity.

2.  On 27 February 1989, the FSM was notified that his eligibility for retirement benefits had been established, the highest grade he held was SFC/E-7, and he would be placed on the Retired List as an SFC/E-7 upon attaining age 60.

3.  The FSM passed away on 3 September 1994 prior to attaining age 60 and eligibility for retired pay.

4.  The DEERS database shows the FSM's retired pay grade as E-7.

5.  The DFAS database shows the FSM retired in pay grade E-7 on 3 September 1994, the date of his death.  The FSM's retired pay record also shows he elected SBP on 28 April 1989 with a base amount (i.e., 55 percent) of $315.17 and that an SBP annuity was being paid to the applicant in the amount of $179.00.

6.  After a thorough review of the FSM's military service records, it is concluded that the retired grade in which the FSM was placed on the Retired List is correct.  Therefore, the applicant is not entitled to correction of the FSM's records in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her Army benefits.  A listing of RSO's by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.



      __________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)                                         AR20090017731



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ABCMR Record of Proceedings (cont)                                         AR20090017731



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