IN THE CASE OF:
BOARD DATE: 20 October 2010
DOCKET NUMBER: AR20100009888
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, in effect, that the records of her deceased mother, a former service member (FSM), be corrected to show she applied for non-regular retired pay effective 17 May 2002 and that her estate be paid her entitlements until the time of her death on 8 April 2009.
2. The applicant states, in effect, she believes her mother applied for retired pay and the paperwork got lost. She goes on to state that it is unusual that her mother did not pursue the reason that she was not receiving her retirement benefits. However, it may have been due to the many personal, medical and family issues she was facing over the past several years which included health issues that eventually led to her death. In any event, she served honorably more than 20 years and made numerous sacrifices and thus deserves to be granted her retired benefits.
3. The applicant provides:
* An addendum to her application explaining her request
* A letter from the law firm representing the FSMs estate
* A letter from the Transitions and Separations Branch of the Human Resources Command St. Louis (HRC-STL)
* The FSMs Chronological Statement of Retirement Points
* Orders transferring the FSM to the Retired Reserve
* The FSMs 20-year letter
* The FSMs death certificate
* The FSMs awards
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 18 May 1942 and commissioned as a United States Army Reserve (USAR) second lieutenant in the Army Nurse Corps on 31 August 1979. She served in hospital units in Utica throughout her entire career and was promoted to the rank of lieutenant colonel on 20 June 1997.
2. On 7 October 1999, the FSM was issued a Notification of Eligibility for Retired Pay (20-year letter) notifying her that she had completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60 (18 May 2002).
3. On 17 May 2002, the FSM was transferred to the USAR Control Group (Retired) due to maximum age.
4. On 25 July 2005, the FSM contacted officials at the HRC-STL requesting a copy of her DD Form 214 (Report of Separation from Active Duty). She was informed that she had never been issued a DD Form 214 because she had not served on active duty long enough to qualify for one. She informed officials at that time that she had located her retired pay packet and would complete it and turn it in.
5. On 8 April 2009, the FSM passed away at the age of 66.
6. On 26 January 2010, a letter was dispatched from the HRC-STL Transitions and Separation Branch informing the law firm of the FSMs estate that a retirement application had been mailed to the FSM a year prior to her 60th birthday; however, she never applied for retirement.
7. A review of the FSM's official records failed to reveal that the FSM had ever applied for Retired Pay benefits.
8. Title 10, U.S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.
9. Section 12731(d) of Title 10, U. S. Code, states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the persons eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.
DISCUSSION AND CONCLUSIONS:
1. By law, receipt of retired pay, even though an entitlement, is only paid upon application by the member.
2. Also by law, once a member has received notification of eligibility for retired pay that eligibility may not be denied.
3. Records at the HRC, STL show the FSM did not apply for retired pay prior to her death. Nevertheless, the FSM honorably served the Army for over 20 years and earned her retired pay.
4. While there is insufficient evidence in the available records to indicate why the FSM did not apply for her earned benefits, it is reasonable to presume that there were extenuating circumstances that either caused her to forget to apply or distracted her from applying for retired pay prior to turning age 60 because a reasonable person would not normally forego such an entitlement unless there were such circumstances.
5. Therefore, as a matter of equity it would be appropriate to correct her records to show she applied for retired pay on 18 November 2001 (approximately 6 months prior to her 60th birthday) and that she was paid her retired pay benefits effective 18 May 2002 until her death on 8 April 2009.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that there was insufficient evidence to show that the FSM was unable to apply for retired pay or that she did not know that she had a requirement to do so. There would be no benefit that would accrue to the FSM by granting this application.
2. Therefore, the Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice and that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ XXX____ ___
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) AR20100009888
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ABCMR Record of Proceedings (cont) AR20100009888
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