IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120003244 


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, the widow of a deceased former service member (FSM), requests correction of her late husband's record to show he completed 20 years of qualifying service for retired pay at age 60 and to provide her with a Reserve Component Survivor Benefit Plan (RCSBP) annuity.

2.  The applicant states:

* she and the FSM were never divorced
* the FSM's Certificate of Death erroneously shows the entry "Divorced"
* the FSM accumulated more than 20 years of qualifying service for retirement
* she was refused assistance and barred from applying for RCSBP
* the FSM should have received a notification of eligibility for retired pay at age 60 (20-Year Letter)
* had the FSM lived to the age of 60 he would have elected spouse RCSBP full coverage  
* she has not received any benefits after the FSM's death

3.  The applicant provides:

* a copy of her State of Alabama Certificate of Birth, dated 21 January 1998
* the FSM'S Leave and Earnings Statements (LES) from May 1977 to December 1991
* her State of Montana Marriage License, dated 29 August 1977
* 
a wedding photograph of her and the FSM
* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 2 August 1970
* a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 January 1983
* DD Form 214 for the period ending 10 December 1991
* an Army Human Resources Command (AHRC) Form 249-3 (Chronological Record of the Military Service), dated 30 January 2011
* a letter from the Department of Veterans Affairs, dated 15 September 2011
* a DD Form 2656-7 (Verification for Survivor Annuity), dated 7 December 2011
* a letter from AHRC, Fort Knox, KY to the applicant, dated 30 December 2011
* a National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement), prepared on 9 January 2012
* a letter from the State of Montana, Department of Public Health and Human Services (DPHHS), Office of Vital Statistics, dated 23 January 2012
* a letter from the State of Montana, DPHHS, dated 2 February 2012
* a letter addressed to Servicemen's Group Life Insurance (SGLI), dated
4 February 2012
* a letter addressed to the Director, J-1, Montana Army National Guard (MTARNG), Fort Harrison, MT, dated 6 February 2012
* a letter of Clarification of Addendum to the NGB Form 23B, dated 
17 March 2012
* a letter to her from the Social Security Administration (SSA), dated 1 June 2012
* a court docket from the U.S. Court of Appeals for the Eleventh Circuit, Atlanta, GA, in the applicant vs the Montana DPHHS, Office of Vital Records, certified on 17 July 2012
* her United States of America Passport
* her Social Security Card
* her DD Form 1173 (Identification Card Privilege Card) issued on
16 November 2011

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.  The FSM was born on 13 July 1950.  He had previous service in the U.S. Army Reserve (USAR) and the Regular Army (RA).  The applicant and the FSM were married on 28 August 1977.

3.  On 24 October 1979, the applicant and FSM agreed to a Property Settlement Agreement.  The document states, "WHEREAS, the parties to this agreement are husband and wife, but unhappy and irreconcilable differences have arisen between them making it impossible to live as husband and wife;…," and "WHEREAS, husband and wife have filed for an action for dissolution of marriage in the First District Court in the State of Montana, in and for the County of Lewis and Clark…."

4.  The FSM's military service record contains a DD Form 1966/7 (Record of Military Processing - Armed Forces of the United States), dated 16 March 1983, that shows his marital status as divorced.

5.  Section I - Personal Data, item 13 (Marital Status) of the FSM's DA Form 2A (Personnel Qualification Record (PQR)), prepared on 11 February 1991, shows his marital status as divorced.

6.  On 10 December 1991, the FSM was honorably discharged from the RA by reason of "dependency" to care for his elderly mother and father.  On
14 February 1992, he enlisted in the MTARNG.

7.  The FSM's service record contains his Mobilization Packet prepared on 
14 February 1992.  The packet contains the below listed documents that show his marital status as divorced or single:

* a DD Forms 1966/1 and 1966/3 – divorced
* a 1992 Form W-4 – single
* a DA 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and or Variable Housing Allowance) – divorced
* a DD Form 93 (Record of Emergency Data) – divorced

8.  An SGLI Form 8286 (Servicemen's Group Life insurance Election and Certificate), dated 5 November 1994, shows the FSM's daughter as the principle beneficiary for SGLI.

9.  Section I - Personal Data, item 13 (Marital Status) of the FSM's DA Form 2A, prepared on 3 December 1993, shows the FSM’s marital status as divorced.

10.  On 3 May 1995, the FSM died.  Item 9 (Marital Status) of his Certificate of Death shows he was divorced at the time of his death.

11.  A DD Form 1300 (Report of Casualty), dated 20 June 1995, shows the FSM's daughter as the primary beneficiary for the SGLI.

12.  The applicant provided a letter from the Clerk of the District Court, Helena, MT, to the Social Security Administration, dated 28 April 2009.  The clerk enclosed a copy of the FSM and applicant's marriage license.  The official continued she was unable to locate a record regarding a divorce between the FSM and the applicant.

13.  The applicant provided a DD Form 2656-7, dated 7 December 2011, that shows she requested RCSBP.  In Item 13a (I certify that I was legally married to the member on the date of death) the applicant checked the "yes" box and indicated she married the FSM on 28 August 1977.

14.  On 30 December 2011, the Chief, Retirement Pay Branch, AHRC, informed the applicant the FSM had not completed 20 years of qualifying service for retirement at age 60.  An official provided an AHRC Form 249-3, prepared on
20 January 2011, that shows the FSM had 14 years, 8 months, and 9 days of qualifying years for retirement.  The document further indicated the applicant was not eligible for RCSBP.

15.  On 9 January 2012, the MTARNG conducted an audit to determine the FSM's correct qualifying years for retirement.  The audit shows the FSM accrued only 17 years, 10 months, and 29 days of qualifying service for retirement.

16.  The applicant provided a letter from the DPHHS, Office of Vital Statistics, dated 23 January 2012.  An official from the DPHHS replied to the applicant's request to correct the FSM's Certificate of Death to show he was married to her at the time of his death.  The official stated, "In order to correct the marital status on the death certificate we will need a certified court order that directs Montana Vital Records to change the marital status to Married and to include you as his wife."
17.  The applicant provided a letter from the DPHHS, dated 2 February 2012, that explained the process of a court order change to a death certificate.

18.  The applicant provided a letter addressed to the SGLI, dated 4 February 2012, that shows she requested payment of SGLI.

19.  The applicant provided a letter addressed to the MTARNG, Director, J-1, dated 6 February 2012, requesting payment of death gratuity benefits.

20.  The FSM's AHRC Soldier Management System (SMS), Transaction History, indicates the following:

* 9 March 2012 – will call Defense Manpower Data Center (DMDC) because Ms. T-------n has a valid DB Identification Card (ID) but is not under deceased SM's record 
* 16 March 2012 – emailed Ms. T-------n to call me back.  Contacted DMDC and received documents proving Ms. T-------n was divorced from deceased SM before the date of death, therefore she does not receive an ID card

21.  On 23 March 2012, the NGB in conjunction with the MTARNG conducted a second audit of service points for the FSM.  The NGB and MTARNG both determined the FSM accrued 21 years, 10 months, and 29 days of qualifying service.

22.  Army Regulation 135-180 implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component (RC) Soldiers.  It states that to be eligible for retired pay an individual need not have a military status at the time of application but must have attained age 60; completed a minimum of 20 years of qualifying service; and, at the time of the FSM’s death, must have served the last 6 years of his or her qualifying service as an RC Soldier.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and that count as qualifying years of service for retirement benefits at age 60.

23.  Title 10, U.S. Code, sections 12731-12740 provides that a non-regular service member 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, at the time of the FSM’s death, had performed the last 6 years of qualifying service while a member of an RC.

24.  Title 10, U. S. Code, section 1448 states annuity is payable to the surviving spouse and dependent children of a person who dies before eligible to elect a reserve component annuity.  The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to provide a reserve component annuity and dies before being notified under section 12731(d) of this title that he/she has completed the years of service required for eligibility for RC retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of the FSM's military service record to show he completed 20 years of qualifying service for retired pay at age 60 and payment of full RCSBP coverage was carefully considered; however, it was determined there is an insufficient evidentiary basis to support her request.

2.  All documents in the FSM's military service record show he was divorced.  The marital status on his Certificate of Death is box checked as divorced.  The documents provided by the applicant do not show without a reasonable doubt that she was married to the FSM at the time of his death.

3.  More importantly, evidence of record shows the FSM accrued 21 years,       10 months, and 29 days of qualifying service for retired pay at the age of 60.  However, on 10 December 1991, the FSM was honorably discharged from the RA.  He enlisted in the MTARNG on 14 February 1992, and he died on 3 May 1995.  As such, the FSM did not serve the last 6 years of qualifying service as an RC Soldier.  By law, the FSM did not meet the eligibility criteria for a Reserve retirement, and therefore, was not eligible to make an RCSBP election.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X __  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      __________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)                                         AR20120003244



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ABCMR Record of Proceedings (cont)                                         AR20120003244



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