IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120010593 


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, in effect, entitlement to Reserve Component Survivor Benefit Plan (RCSBP) benefits based on the death of her husband.

2.  The applicant states, in effect, errors in the FSM's military records resulted in him being unable to receive his retirement paperwork prior to his death.  This   resulted in the applicant being unable to receive her husband's retirement annuity.

3.  The applicant provides:

* a self-authored statement
* Department of the Army Reserve Personnel (DARP) Form 249-2-E (Chronological Statement of Retirement Points)
* Options Upon Notification for Promotion After Second Consideration memorandum
* DD Form 214 (Report of Separation from Active Duty)
* Certificate of Death
* Marriage License
* Orders C-10-445510





CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 23 February 1952.  He enlisted in the Regular Army on 18 May 1973.  On 9 May 1977, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

2.  On 10 June 1979, he was appointed for an indefinite term as a Reserve Commissioned Officer in the U.S. Army. 

3.  21 August 1992, the FSM and the applicant were married.

4.  The applicant provides and the FSM's records contain a DARP Form 249-2-E, dated 8 September 1992, which shows he completed 10 years of qualifying service toward nonregular retirement.

5.  The applicant provides and the FSM's records contain a memorandum, dated 18 August 1994, from the U.S. Army Reserve Personnel Center, St. Louis, MO, which shows he elected to transfer to the Retired Reserve.  It was noted on his request that transfer to the Retired Reserve did not automatically entitle him to pay, allowances or other benefits.  Completion of 20 years total service did not entitle him to retirement pay or other benefits unless such service was qualifying service for retirement pay and he had attained the age prescribed by law.

6.  The applicant provides and the FSM's records contain Orders C-10-445510, dated 28 October 1994, issued by the USAR Personnel Center, St. Louis, MO, which show he was released in the rank/grade of captain/O-3, at the age of       42 years, 6 months, and 7 days from the USAR Control Group (Reinforcement) for Non-Selection for Promotion on 29 August 1994, and reassigned to the Retired Reserve.

7.  There is no evidence and the applicant provided no evidence which shows the FSM completed the required years of service to be eligible for retired pay upon application at age 60.  

8.  On 13 August 2011, the FSM died at the age of 59.

9.  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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP.

10.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) provides the reasons a Soldier is authorized transfer to the Retired Reserve.  Eligible Soldiers must request transfer if they: 

   a.  Are entitled to receive retired pay from the U.S. armed forces because of prior military service.

   b.  Have completed a total of 20 years of active or inactive service in the U.S. armed forces.

   c.  Are medically disqualified for active duty (AD) resulting from a service–connected disability.

   d.  Were appointed based on the condition the soldier immediately apply for transfer to the Retired Reserve.

   e.  Reached the age of 37 and completed a minimum of 8 years of qualifying Federal service.

   f.  Reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of AD in time of war or national emergency. (Service performed after 1 July 1949 is also creditable.)

   g.  Completed 10 or more years of active Federal commissioned service.

   h.  Are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on AD, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive RCSBP benefits based on the death of her husband, a FSM, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  Evidence shows the FSM had surpassed the age of 37 and had completed over 8 years of qualifying Federal service upon his release for Non-Selection of Promotion and transfer to the Retired Reserve on 29 August 1994. 

3.  On 14 September 1994, the FSM elected to transfer to the Retired Reserve.  It was noted on his request that Transfer to the Retired Reserve did not automatically entitle him to pay, allowances or other benefits.  Completion of     20 years total service did not entitle him to retirement pay or other benefits unless such service was qualifying service for retirement pay and he had attained the age prescribed by law.

4.  By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The FSM's records do not indicate that he completed the required years of service to be eligible for retired pay upon application at age 60.  Therefore, he was ineligible to participate in the RCSBP.

5.  In view of the foregoing evidence, the applicant is not entitled to the 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)                                         AR20120010593



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ABCMR Record of Proceedings (cont)                                         AR20120010593



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