IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110020557 


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 reconsideration of the earlier petition to the Board requesting the record of her deceased mother, a former service member, be corrected to show she applied for retired pay at age 60 and providing the estate of the FSM all pay and allowances due as a result.  

2.  The applicant states, in effect, it is unjust that the FSM never received the benefits she earned because the retirement application that she submitted was never processed by the U.S. Army.  The applicant claims that although the FSM cannot speak for herself, the FSM contacted the U.S. Army Human Resources Command (HRC), St. Louis, Missouri in July 2005 and stated that she had located the retirement packet and she was mailing it in; however, no one is sure what happened to the packet once it was mailed in.  The applicant claims it is apparent based on her call to HRC, St. Louis, she fully expected to receive retired pay. 

3.  The applicant further states the Discussion and Conclusions of the original Board decision among other conclusions found that it would be appropriate as a matter of equity to correct the FSM’s record to show she applied for retired pay on 19 November 2001 and that she should be paid retired pay from 18 May 2002 until the date of death on 8 April 2009.  However, even with this recommendation the applicant was denied which is in itself an injustice.  The applicant asks that there be no mistake presuming this application is solely about the money, it is rather about the principle that all of our service members should be taken care of and treated fairly, with respect, whether in life or death.  

4.  The applicant states a letter from the FSM’s primary care physician attests to the fact that the last years of the FSM’s life were filled with many physical conditions and that the FSM’s primary focus during this period was her health.  The FSM had no intention of ignoring her rights as an honorably retired dedicated Soldier, but she was clearly distracted by her ill health.  The FSM’s state of mind and capability need to be considered.  

5.  The applicant provides the following documents in support of the request:

* Self-Authored Letter
* Primary Care Physician Letter
* 4 Supporting Letters from Fellow Soldiers

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100009888 on 20 October 2010.  

2.  During the original review of the case, contrary to the staff's recommendation to grant relief, the Board found insufficient evidence to show the FSM was unable to apply for retired pay or that she did not know that she had a requirement to do so.  Further, the Board determined there would be no benefit that would accrue to the FSM by granting the application.  As a result, the Board determined the evidence presented did not demonstrate the existence of a probable error or injustice and that the overall merits of the case were insufficient as a basis for correction of the records of the FSM.  

3.  On 25 October 2010, The Deputy Assistant Secretary of the Army (Army Review Boards), after considering the Staff findings and conclusions and the Board’s reasons for dissent, adopted the unanimous recommendation of the Board to deny payment of retired pay to the FSM’s estate.  

4.  A review of the FSM’s integrated web system record shows she contacted HRC, St. Louis on 25 July 2005 and indicated she found and was submitting her retirement pay packet.  The record is void of any additional information regarding the submission and approval of the retired pay packet.  



5.  The new evidence submitted by the applicant includes a statement from the FSM’s primary care physician who states the FSM was under his care from 
16 April 1996 through 3 December 2009.  He states the FSM suffered from pancreatic and breast cancer and the cancer affected her to the point she was not able to make proper decisions regarding matters other than health the last years of her life.  

6.  The new evidence submitted also includes supporting statements from four former Soldiers who served with the FSM.  They all attest to the dedication, care, and concern the FSM showed her patients as a nurse.  They further express their support for the estate of the FSM to receive the retired pay the FSM earned based on her military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that the record of the FSM be corrected to show she applied for retired pay and that the estate of the FSM be provided all back retired pay due as a result has been carefully considered.  The original Board correctly applied the evidence and arrived at a conclusion that, given the FSM would accrue no benefit from relief being granted, absent evidence of error or injustice the overall merits of the case did not warrant granting the requested relief.  In arriving at this decision, it appears the Board did not consider the intent of the FSM to submit her retired pay application as expressed in her 2005 phone call to HRC, St. Louis; and/or the impact of the debilitating effects of the pancreatic and breast cancer she suffered from could have had on her ability to understand and complete administrative tasks during the last years of her life.

2.  The evidence of record confirms the FSM was eligible to receive retired pay at age 60 upon application.  It further shows the FSM inquired about this retired pay in 2005 and expressed her intent to complete and submit the retired pay application.  Although there is no specific evidence that the FSM actually submitted her application it is reasonable to accept the applicant’s argument that FSM's phone call to HRC, St. Louis shows the FSM’s intent to submit the application, and that it was either misplaced or lost.  

3.  Given the serious health problems the FSM was experiencing during the last years of her life, it is also reasonable to accept that she was not always thinking clearly about administrative requirements necessary for her to receive her retired pay.  Therefore, given there was no other apparent reason preventing the FSM from applying for and receiving retired pay, it is unreasonable to presume her failure to properly submit her retirement application was a conscious decision resulting from her desire not to receive the retired pay she was entitled to based on her military service.  
4.  Based on the extraordinary equity considerations in this case, even though no direct benefit would accrue to the FSM, it would be appropriate and serve the interest of equity to amend the original Board recommendation to show the FSM applied for retired pay in a timely manner, that her application was approved, and she was authorized to receive retired pay effective 18 May 2002.  Further, it would also be appropriate to provide the FSM’s estate all back retired pay due from 18 May 2002 through 8 April 2009, the date of her death.  Although no benefit would directly accrue to the FSM given her death, her estate, which is likely responsible for any liabilities incurred by the FSM during her illness, will receive the benefit in accordance with the FSM’s wishes. 

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 amendment of the ABCMR’s decision in Docket Number AR20100009888, dated 20 October 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she applied for retired pay on 18 November 2001 and that she was authorized retired pay benefits effective 18 May 2002 until her death on 8 April 2009 and providing all back retired pay due to her estate.  



      _______ _   _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)                                         AR20110020557



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ABCMR Record of Proceedings (cont)                                         AR20110020557



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