IN THE CASE OF:	

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130011799 


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 wife of a deceased former service member (FSM), requests correction of the FSM's records to place him on the Retired Reserve list (i.e., Retired List) and pay his military retired pay.

2.  The applicant states that when the FSM died, on 17 May 2013, she found out that he was not drawing his military retired pay.  The FSM had always told her that he was drawing his retired pay.  She also discovered:

* the Department of Veterans Affairs (VA) awarded him a 100 percent (%) service-connected disability
* he should have received a medical board but never received one
* he was transferred to the Reserve based upon his medical condition 

3.  The applicant provides:

* Letter, dated 3 March 1978
* Standard Form (SF) Form 88 (Report of Medical Examination), dated 
24 February 1984
* SF 98 (Report of Medical History), dated 24 February 1984
* Letter, dated 28 February 1984
* Memorandum, dated 26 April 1984
* Orders Number 89-27, dated 30 April 1984
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 30 April 1984
* Statement of Service, dated 20 June 1984
* Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 26 April 1946.  After having had previous enlisted service in the Oklahoma Army National Guard (OKARNG) from 19 May 1966 to 16 June 1968, the FSM was appointed as a Reserve commissioned officer on 
17 June 1968.  

2.  The FSM's record contains a memorandum entitled, Resignation from the OKARNG to transfer to the U.S. Army Reserve Control Group (Retired), dated 
30 April 1984, wherein he stated:

	a.  "I, [FSM]… hereby tender my resignation as an officer of the [OKARNG] under the provisions of [National Guard Regulation (NGR)] 635-100 [Commissioned Officers - Federal Recognition and Related Personnel Actions] and request transfer to the [U.S.] Army Reserve [USAR] with assignment to the USAR Control Group (Retired Reserve) under the provisions of AR [Army Regulation] 140-10 [USAR Assignments, Attachments, Details, and Transfers].  I do not have any remaining service obligation."

	b.  "In electing this transfer, I am aware that I am not qualified for retired pay at age 60 under the provisions of AR 135-180 [Qualifying Service for Retired Pay Nonregular Service], and have not been issued a letter notifying [me of] such eligibility."

3.  The FSM's record contains an affidavit, dated 30 April 1984, wherein he stated, "I, [FSM],… do hereby waive my rights for having my case brought before a Physical Fitness Board as outlined in NGR 635-101 [Efficiency and Physical Fitness Boards].  I agree to be separated from the [OKARNG] because of [a] Physical Disqualification as indicated on my physical examination, dated 
24 February 1984 and further agree to be separated on a date to be specified by the Adjutant General of Oklohoma."

4.  Orders Number 89-27, issued by the OKARNG, on 30 April 1984 show he was honorably separated from the OKARNG on 30 April 1984 and transferred to the Retired Reserve, USAR Control Group (Retired).

5.  His NGB Form 22 shows he was honorably separated from the OKARNG and transferred to the Retired Reserve, on 30 April 1984, because he was medically disqualified for further military service.  This form also shows he completed 
17 years, 11 months, and 12 days of total service for pay.

6.  The FSM's record contains an Official Statement of Service in the OKARNG, dated 20 June 1984, which shows he served for less than 20 years in the OKARNG.

7.  Army Regulation 135-180 states that retired pay is pay that is granted to Soldiers and former Reserve component Soldiers after completion of 20 or more years of qualifying service and upon attaining age 60.  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 not have elected to receive disability severance pay in lieu of retired pay at age 60. 

8.  Army Regulation 140-10 states that service members may be assigned to the USAR Control Group (Retired) if the service member completed a total of 20 years of active or inactive service in the Armed Forces, medically disqualified for active duty resulting from a service-connected disability, or was medically disqualified not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The FSM, upon his request, was placed in the Retired Reserve and honorably separated from the OKARNG on 30 April 1984.

2.  When the FSM requested his transfer to the Retired Reserve, he acknowledged that he was aware that he would not be entitled to retired pay upon reaching age 60.  This acknowledgment was included in his request because he had not yet completed 20 years of military service and, therefore, he was not eligible for retired pay.

3.  Additionally, the FSM waived his right to a medical board and requested he be separated.  Therefore, the OKARNG and the Army did not put his records before a medical board and determine whether or not he should have been medically retired, received severance pay for a medical disability, or receive a disability rating. 

4.  Based on the foregoing, there is insufficient evidence to grant 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)                                         AR20130011799





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ABCMR Record of Proceedings (cont)                                         AR20130011799



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