IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120017857 


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 correction of the records of her deceased husband, a former service member (FSM), to show he had 20 creditable years of service for retired pay purposes and payment of any benefits that flow from that change.

2.  The applicant states, in effect, that the FSM's retirement points statement incorrectly reflects that the FSM did not have 20 qualifying years of service for retired pay purposes.  She states he was supposed to be transferred to the Retired Reserve and it was never accomplished.  Additionally, he was never notified that he did not have at least 20 qualifying years and there is no indication that he was ever notified of any benefits or insurance.  She contends that his retirement year ending 31 March 1985 should be corrected to show 77 points, his retirement year ending 31 March 1990 should be corrected to show 67 points, his retirement year ending 31 March 1992 should be corrected to show at least 75 points, and she should be paid all benefits to which she is entitled.

3.  The applicant provides a copy of the response to a letter she sent to The Adjutant General of the Kentucky Army National Guard (KYARNG) with a copy of her letter, the FSM's death certificate and Honorable Discharge Certificate, the FSM's retirement points credits, the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and two of the FSM's noncommissioned officer evaluation reports.



CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the ARNG on 19 May 1970 and served through a series of continuous reenlistments in both the Ohio ARNG and the KYARNG.  His expiration of term of service (ETS) date after his last enlistment was established as 18 May 1992.

2.  On 18 May 1992, the FSM was honorably discharged from the KYARNG due to ETS (no obligation).  His National Guard Bureau (NGB) Form 22 issued at the time of his discharge shows he was not transferred to another command.  However, block 18 (Remarks) indicates he was transferred to the U.S. Army Reserve (Retired).  It also shows he was eligible for immediate reenlistment.

3.  The FSM passed away on 15 December 2011 at the age of 59.

4.  A review of the FSM's official records failed to show any orders transferring him to the Retired Reserve.  Additionally, his ARNG Retirement Points History Statement, dated 24 August 1992, reflects that he had 18 creditable years of service for retired pay purposes.  His retirement points statement reflects that he did not have qualifying years for the retirement years ending 31 January 1982, 31 March 1985, 11 March 1990, and 31 March 1992.  A qualifying year is one in which a Reserve Component Soldier earns 50 retirement points or more.

5.  The FSM's official records also show no evidence to indicate he was ever issued a 20-year letter or any notice indicating that he had 20 creditable years of qualifying service for retired pay purposes.  

6.  The email from the KYARNG provided by the applicant indicates that an extensive audit was conducted by the KYARNG and there was insufficient evidence to establish that the FSM completed 20 creditable years of service for retired pay purposes.

7.  Sections 12731 through 12740 of Title 10, U.S. Code, 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.  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 which count as qualifying years of service for retirement benefits at age 60.

8.  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 under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve component retired pay.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that the FSM completed 20 creditable years of service for retired pay purposes is not in doubt, the applicant failed to provide sufficient evidence to support her claim.

2.  The FSM's official records fail to show he attained a minimum of 50 creditable points per year for 20 years or that he ever attained eligibility for transfer to the Retired Reserve for a non-Regular retirement.

3.  While the FSM's NGB Form 22 does indicate that he was transferred to the Retired Reserve in the remarks block, that entry contradicts the entries which indicate he was not transferred to another command and that he was honorably discharged upon his ETS.

4.  It should also be noted that reenlistments are a volitional act on the part of the Soldier and only the individual Soldier may take action to continue military service.  Soldiers who do not reenlist or extend are discharged at the expiration of their contract unless they take action to continue serving, which appears to be what happened in the FSM's case.

5.  In the absence of sufficient evidence to show the FSM, in fact, had creditable years during those years in which he failed to obtain 50 or more points, there appears to be no basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by her husband in service to the United States.  The applicant and all Americans should be justifiably proud of her husband's service in arms.



      ____________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)                                         AR20120017857



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ABCMR Record of Proceedings (cont)                                         AR20120017857



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