IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120018730 


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, correction of the FSM's military records to show:

	a.  he completed 20 qualifying years of military service for retired pay;

	b.  the applicant was eligible to receive a Survivor Benefit Plan (SBP) annuity when the FSM died; and

	c.  the applicant was eligible for a Uniformed Services ID card when the FSM reached age 60.

2.  The applicant states she received a letter in 1987 from the U.S. Army Reserve Personnel Center (ARPERCEN) informing her that the Chief, Retired Pay Division, U.S. Army Finance and Accounting Center (USAFAC), had been notified and authorized her an immediate SBP annuity.  This letter further authorized her to apply for an ID card 3 months prior to the FSM's 60th birthday. She has received an SBP annuity for the last 25 years.  Now, the U.S. Army Human Resources Command (HRC) admits that they have misplaced the FSM's files which prove he had 20 good years of service for a Reserve retirement.  As a result, her SBP was cancelled.

3.  The applicant provides copies of:

* Letter from the Retirement Services Officer (RSO), Joint Base Lewis McChord (JBLM), dated 18 September 2012
* Letter from a former member of the State's Active Duty Army Advisor Team, dated 18 July 2012
* DD Form 1300 (Report of Casualty), dated 6 February 1987
* Letters from the applicant to ARPERCEN, dated 10 March 1986 and 
27 October 1986
* Letter from ARPERCEN to the applicant, dated 26 January 1987
* USAFAC Form 20-244FL (Form Letter) from USAFAC), undated
* Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 5 March 1987
* Memorandum for Record, dated 9 March 2011
* Letter from HRC, dated 21 March 2011
* Email communications, dated between 21 March and 18 November 2011
* Defense Finance and Accounting Service (DFAS) Pay Inquires (11 pages), dated in February, March and April 2011
* Letters from DFAS to the applicant, dated 19 May and 21 July 2011 (with enclosures) 

CONSIDERATION OF EVIDENCE:

1.  A DD Form 1300, as provided by the applicant, reports the FSM died on 
7 March 1986.  At the time he was a member of the USAR Control Group (Reinforcement).  He was born on 11 December 1941 and would have been 
60 years of age on 11 December 2001.

2.  On 10 March 1986, the applicant sent a letter to ARPERCEN wherein she stated the FSM was killed in a civilian helicopter accident on 7 March 1986.  She requested information concerning the FSM's Servicemember's Group Life Insurance and to have a calculation of the FSM's years of service for retirement.  

3.  On 27 October 1987, the applicant sent a letter to ARPERCEN requesting the FSM's retirement status.  She indicated the following documents were enclosed with this letter:

* Personnel file through 1982
* Certified copies of DD Forms 214 (Report of Separation from Active Duty)
* Various medical records
* Efficiency reports
* Orders for physicals for Reserve duty
* Various pay vouchers
* Copies of correspondence courses with FSM's noted calculations 
* Form 247 reviewed by LTC B _ _ _ _
* Marriage Certificate
* Death Certificate

4.  In a letter dated 26 January 1987, the Chief, Retirement Services, ARPERCEN, responded to the applicant's request for an SBP annuity based on the FSM's military service.  The letter states the Chief, Retired Pay Division, USAFAC had been notified and was authorized to pay an immediate annuity to the applicant.  The applicant was further informed that she could apply for an ID card when the FSM would have reached his 60th birthday.

5.  DFAS pay inquiries indicate the applicant's SBP annuity was suspended effective 1 March 2011.

6.  On 9 March 2011, the RSO, JBLM, wrote a memorandum for record wherein he stated that:

	a.  the applicant first contacted the RSO between 2008 and 2010.  She was inquiring about being issued an ID card;

	b.  she had been receiving SBP since the FSM's death on 7 March 1986;

	c.  when the ID card section at JBLM contacted the Defense Enrollment Eligibility Reporting System (DEERS), she was informed that she was not eligible for an ID card;

	d.  she contacted the RSO believing the RSO would provide her a letter showing that she was eligible for an ID card; and

	e.  when the RSO contacted DFAS, their only response was that all they had was the Certificate of Eligibility going back to 2006.

7.  In a letter, dated 21 March 2011, the Chief, Army DEERS Rapids Project Office, informed the applicant that:

	a.  for a widow to receive an ID card with benefits the FSM must have qualified for retirement benefits by reaching age 60 after completing 20 or more years of Reserve service for pay; and

	b.  a complete service computation of the FSM's service was performed showing he did not have the minimum of 20 years of Reserve service for retirement pay at age 60; he only had 14 years, 4 months, and 8 days of qualifying service.


8.  DFAS records contain the following documents:

* Letter from ARPERCEN to the applicant, dated 26 January 1987
* USAFAC Form 20-244FL (Form Letter) from USAFAC), undated
* Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 5 March 1987
* Standard Form 1199A (Authorization for Deposit of Federal Recurring Payments), dated 12 March 1987

9.  AHRC Form 249-3 (Chronological Record of Military Service), dated 
22 November 2011, shows that between 10 February 1960 and 7 March 1986, the FSM had 22 years, 2 months, and 15 days of total service for longevity pay purposes but only 16 years, 4 months, and 5 days of qualifying service for retirement.  

10.  On 18 July 2012, Lieutenant Colonel (Retired) B _ _ _ _, wrote a letter in support of the applicant.

	a.  He states he was a senior member of the State's Active Duty Army Advisor Team and he was approached by a member of the Oregon Army National Guard in 1986 concerning a determination of eligibility for benefits pertaining to the FSM's widow.

	b.  He met with the applicant who had all of the documents concerning the FSM's creditable service.  These documents were in a large box, in disarray.

	c.  Because the FSM had died before receiving a retirement notification, the author set about trying to determine if the FSM had been eligible at the time of death.

	d.  Over a period of several weeks, he sorted, organized and evaluated the documents, culling duplicates and extraneous materials.  After an extensive review, he determined that the FSM had the exact number of points needed to qualify.

	e.  He had a subsequent telephone conversation with an ARPERCEN representative who confirmed that the data was correct.

	f.  He contends his memory of the events is clear and he believes now, as he did then, that the FSM had the necessary points for retirement.

11.  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 the member dies before reaching age 60, premiums are deducted from the annuity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, requests, in effect, correction of the FSM's military records to show that:

	a.  he completed 20 qualifying years of military service for retired pay;

	b.  when the FSM died the applicant was eligible to receive an SBP annuity; and

	c.  when the FSM would have reached age 60, the applicant was eligible for a Uniformed Services ID card.

2.  The available evidence clearly states that in 1986 an extensive review of the FSM's files was conducted resulting in a determination that the FSM had indeed completed 20 years of qualifying service for retired pay.  Based on that conclusion, the FSM's widow was authorized an SBP annuity which she received for approximately 25 years.

3.  In 2011, when the applicant attempted to obtain an ID card she was told the FSM had not completed the required service for retirement.

4.  In November 2011, HRC conducted an audit of the FSM's available military records and determined that the FSM had only completed 16 years, 4 months, and 5 days of qualifying service towards retirement.  However, there is no way of knowing if these were the same or all of the records that were reviewed in 1986 when the FSM was found to have completed the required 20 years of service.

5.  The letter issued by ARPERCEN on 26 January 1986 should be considered to have the same strength and authority as a Notification of Eligibility for Retired Pay at Age 60.  As such, even if the original decision was in error, it must remain valid as to the issue of the FSM's retirement eligibility, from which the applicant's SBP eligibility flows because there is no evidence whatsoever of fraud on the part of either the applicant or the deceased FSM.

6.  In view of the above, and based on equity, the applicant's request should be granted.

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:

	a.  showing he completed 20 years of qualifying service for retired pay;

	b.  reinstating the applicant's SBP annuity with no loss in payments for the period of suspension; and

	c.  establishing authorization in DEERS for the applicant to obtain a Uniformed Services Identification Card.



      _______ _   __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)                                         AR20120018730



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ABCMR Record of Proceedings (cont)                                         AR20120018730



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