BOARD DATE: 17 February 2011
DOCKET NUMBER: AR20100020947
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, the records of her deceased husband, a former service member (FSM), be corrected to show he applied for non-regular retirement at age 60.
2. The applicant states, in effect, her deceased husband turned 60 on 3 August 2006 but he never applied for retirement and he was not aware he needed to do so. He died on 2 April 2010 at age 63.
3. The applicant provides a certificate of death.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM's records show he was born on 3 August 1946 and he married Vicki, the applicant, on 3 May 1972.
3. Having prior service in the Regular Army and U.S. Army Reserve (USAR) Control Group, he enlisted in the Iowa Army National Guard (IAARNG) on 20 May 1976 and held military occupational specialty 91B (Medical Specialist)
He served though multiple extensions or reenlistments in the IAARNG and the highest rank/grade he attained was sergeant (SGT)/E-5.
4. On 19 June 1995, by memorandum, IAARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This memorandum notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.
5. On 24 August 1995, the FSM completed a DD Form 1883 (SBP Election Certificate). He indicated he was married and had one dependent child born on 4 August 1989. He further elected spouse and children Reserve Component SBP (RCSBP) coverage, Option C (immediate coverage), based on the full amount. He, his spouse (the applicant), and a witness authenticated this form by placing their signatures in the appropriate blocks.
6. On 31 May 1999, he was honorably discharged from the IAARNG and transferred to the USAR Control Group (Retired), St. Louis, MO. The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he completed a total of 28 years, 11 months, and 25 days for pay and 24 years, 10 months, and 2 days of service for retired pay.
7. On 15 June 1999, Headquarters IAARNG, Johnston, IA, published Orders 114-064, discharging the FSM from the ARNG and transferring him to the USAR Control Group (Retired), St. Louis, effective 31 May 1999.
8. On 2 April 2010, the FSM died. His certificate of death shows he was married to the applicant at the time of death.
9. There are no orders in his records that show the U.S. Army Human Resources Command, St. Louis, published orders retiring the FSM and placing him on the Retired List in his retired rank/grade of SGT/E-5, effective 3 August 2006, his 60th birthday.
10. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-regular Service), paragraph 2-1a indicates that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have attained age 60 and completed a minimum of 20 years of qualifying service.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM served in the ARNG and completed a total of 24 years, 10 months, and 2 days of service for retired pay. He turned 60 on 3 August 2006. However, it appears he did not know he needed to apply for retired pay at the time and therefore no retired or retainer pay was ever established for him.
2. Having completed the required number of years for non-regular retirement and as a matter of equity, it would be appropriate to correct his records to show he applied for retired pay prior to reaching age 60 and place him on the retired list effective 3 August 2006 with entitlement to back pay and allowances.
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. showing the FSM applied for retired pay prior to reaching the age of 60;
b. showing the request was received by the U.S. Army Human Resources Command, St. Louis, and they published orders retiring the FSM and placing him on the Retired List in his retired rank/grade of SGT/E-5, effective 3 August 2006;
c. showing the request for retired pay was received by DFAS and processed by the appropriate office in a timely manner; and
d. paying his legal beneficiary the retired pay owed as a result retroactive to 3 August 2006.
_______ _ 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) AR20100020947
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ABCMR Record of Proceedings (cont) AR20100020947
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