IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20120005563 


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 the records of her deceased husband, a former service member (FSM), be corrected to show:

* He qualified for non-regular retirement
* He elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP)

2.  The applicant did not state why the FSM’s records are in error or unjust.

3.  The applicant provides:

* FSM’s death certificate
* FSM’s National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG)) Retirement Points History Statement)

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 20 June 1971.

2.  He enlisted in the Illinois ARNG (ILARNG) on 17 February 1989 and he held military occupational specialty 92Y (Unit Supply Specialist).  He was discharged from the ARNG on 15 February 1995 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).

3.  He again enlisted in the ILARNG on 26 February 1996 and followed with a series of 3 year extensions, on 7 February 1999, 2 March 2002, 15 September 2004, 3 December 2007, and 7 November 2009.  

4.  On 24 October 2004, he entered active duty and served in Kuwait/Iraq from December 2004 to December 2005.  He was honorably released from active duty on 9 January 2006.

5.  He died on 21 January 2010 at the age of 38.

6.  His ARNG Retirement Points History Statement shows he completed 
19 years, 11 months, and 5 days of qualifying service for non-regular retirement. A breakdown of his retirement points is as follows:

FROM
TO
TOTAL POINTS
QUAL YEAR
19890217
19900216
118
01/00/00
19900217
19910216
113
01/00/00
19910217
19920216
79
01/00/00
19920217
19930216
76
01/00/00
19930217
19940216
78
01/00/00
19940217
19950216
78
01/00/00
19950217
19960216
15
00/00/00
19960217
19970216
78
01/00/00
19970217
19980216
73
01/00/00
19980217
19990216
79
01/00/00
19990217
20000216
79
01/00/00
20000217
20010216
80
01/00/00
20010217
20020216
89
01/00/00
20020217
20030216
102
01/00/00
20030217
20040216
114
01/00/00
20040217
20050216
179
01/00/00
20050217
20060216
342
01/00/00
20060217
20070216
60
01/00/00
20070217
20080216
79
01/00/00
20080217
20090216
81
01/00/00
20090217
20100221
83
00/11/05




TOTAL

2088
19/11/05
7.  Title 10, U.S. Code, sections 12731 through 12740 authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title. 

8.  National Guard Regulation 680-2 (Automated Retirement Points Accounting System) prescribes procedures for recording retirement points and years of credible service for non-Regular retirement.  The regulation states that Soldiers must earn a minimum of 50 points from all sources in a retirement year to have that year creditable towards verification of 20 years qualifying service for retired pay.  If the Soldier serves less than a full year, he must earn the minimum number of points indicated in Table 2-4 for that period to be creditable for retirement.  Table 2-4 shows the "From" and "Through" date and the minimum points required to receive credit for a partial year. 

9.  Department of Defense Instruction 1215.7 (Service Credit for Reserve Retirement), paragraph 6.1.5.2. states that when, as a result of a break-in-service, a partial year occurs, the Service member must meet the minimum retirement point requirement set out in this Instruction for the member's service to be credited as a partial year towards a qualifying year.  A partial qualifying year is any period less than 12 full months in which the retirement points credited to a member, when computed proportionally, are equal to or greater than 50 points.  

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

11.  Title 10, U. S. Code, section 1448(f)(1)(A)(i) states that the Secretary concerned shall pay an annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies before being notified that he has completed the years of service required for eligibility for reserve component retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The FSM served in the ARNG and USAR from February 1989 through January 2010.  As verified by the ARNG Retirement Points History Statement, the FSM was actively serving with the ILARNG when he died on 10 January 2010.  With the exception of Retirement Year Ending (RYE) 16 February1996 retirement year when he earned 15 points, all his years are qualifying or good years.  A qualifying year is defined as one wherein the RC Soldier has earned  50 retirement points. 

2.  Based on his service in the ILARNG, as documented on his history statement it is apparent that the FSM would have successfully completed 20 qualifying years of service for a non-Regular retirement.  Unfortunately, he lacked 25 days of reaching the requirement due to his unexpected death.  The statute requires a full 20 qualifying years be completed to be eligible for retired pay at age 60.  

3.  During RYE 16 February 1996, the FSM received 15 retirement points which were insufficient for that year to count as a qualifying year.  The FSM also earned in excess of 50 retirement points during several other RYEs.  Therefore, by redistributing 35 of his excess points to RYE 16 February 1996 would credit him with 50 retirement points for RYE 16 February 1996 and thus a qualifying year and subsequently entitle him to a 20 year non-Regular retirement had he lived until the appropriate age.  

4.  The above correction would entitle the FSM to receipt of his notification of eligibility to receive retired pay at age 60 (his 20-year letter).  By law, the applicant would then automatically be entitled to the RCSBP annuity.  

5.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

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:

* redistributing 35 of the FSM's excess retirement points to RYE                16 February 1996 to provide him with a full qualifying year of service for RYE 16 February 1996
* issuing him a 20-year letter showing he is entitled to Reserve retired pay at age 60 as a result of the above correction
* as a result of the above corrections, the applicant is entitled to the RCSBP annuity retroactive to the day after his death, 22 January 2010



      _______ _   _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)                                         AR20120005563



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ABCMR Record of Proceedings (cont)                                         AR20120005563



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