BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140016973 


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 her late husband's military records to show he received his 20-year letter prior to reaching age 60 and that his retired pay application was approved on 17 February 2011.

2.  The applicant states:

	a.  In 2013, she submitted a DD Form 149 (Application for Correction of Military Record Under the Provision of Title 10, U.S. Code, Section 1552) requesting retired pay and issues relating to the Survivor Benefit Plan (SBP) and the highest rank held by her late husband.

	b.  The retired pay should have been paid to her late husband while he was living.  He was not paid retired pay because of incomplete and inaccurate service records at the time.

	c.  Her late husband applied for retired pay but due to clerical errors in the records system, they needed to follow specific administrative steps to correct his records before he could receive the retired pay he had earned.  The process took so long that by the time the errors were corrected, her husband had died.

	d.  The Defense Finance and Accounting Service verbally told her they do not have the authority to issue retired pay until they receive the "go-ahead" from the Army Board for Correction of Military Records (ABCMR).

	e.  The issues relating to her late husband's highest rank held and the SBP have both been resolved.

3.  The applicant provides:

* letter from the Chief, Reserve Component Retirements Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 24 November 2014
* marriage certificate
* FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* letter from the Chief, Personnel Records Branch, Adjutant General's Department, Austin, TX, dated 19 October 1992
* FSM's U.S. Army Reserve (USAR) Personnel Command Chronological Statement of Retirement Points, dated 12 May 2011
* letter from the Chief, Reserve Component Retirements, USAR Personnel Command, Fort Knox, KY, dated 12 May 2011
* FSM's death certificate

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 10 August 1950.  Having prior active service in the U.S. Marine Corps and Regular Army, he enlisted in the Army National Guard (ARNG) on 25 August 1984.  He was honorably discharged from the ARNG on 15 July 1992 and transferred to the USAR Control Group (Reinforcement).  On 14 September 1993, he was honorably discharged from the USAR.

3.  The FSM reached age 60 on 29 August 2010.

4.  His records contain a DD Form 2656 (Data for Payment of Retired Pay), dated 17 February 2011, showing he applied for retired pay.  On 12 May 2011, the USAR Personnel Command returned his application because his records showed he had only completed 19 years, 10 months, and 12 days of qualifying service for Non-regular retired pay at age 60.

5.  The FSM died on 11 August 2011.

6.  He was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 2 October 2012.

7.  The applicant provided a letter from the U.S. Army Human Resources Command, dated 24 November 2014, which states:

	a.  Records show the FSM applied for retired pay and was denied on 12 May 2011 because his retirement packet did not contain information verifying completion of 20 years of qualifying service or a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

	b.  The FSM was discharged from the ARNG on 14 September 1993.  It was the responsibility of the FSM and ARNG to make sure his retirement points were correct before his discharge.  The ARNG updated the FSM's retirement point credit on 30 August 2012 and issued his 20-year letter on 2 October 2012, which was after his death.

	c.  If the ARNG had updated the FSM's retirement point credit in a timely manner, the FSM would have been eligible to receive his retired pay.

8.  Title 10, U.S. Code, section 12731(a), states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last 8 years of qualifying service have been performed while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows:

* the FSM reached age 60 on 29 August 2010
* he applied for retired pay on 17 February 2011
* his request for retired pay was denied in May 2011 because his retirement packet did not contain information verifying completion of 20 years of qualifying service or a Notification of Eligibility for Retired Pay at Age 60 (20-year letter)

2.  The FSM was issued his Notification of Eligibility for Retired Pay at Age 60 
(20-year letter) on 2 October 2012, almost 14 months after his death.

3.  The applicant's contention that the FSM was entitled to retired pay has merit.  It appears the FSM would have been eligible to receive his retired pay if the ARNG had updated his retirement point credit in a timely manner.  Therefore, the FSM's military records should be corrected to show he received his 20-year letter prior to reaching age 60 and that his application for retired pay was approved on 17 February 2011.

BOARD VOTE:

___X_____  ____X____  __X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 the FSM received his 20-year letter prior to reaching age 60,

	b.  showing the FSM's retired pay application was approved on 17 February 2011, and

	c.  paying the applicant the FSM's retired pay from 17 February 2011 through 11 August 2011.



      ___________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)                                         AR20140016973



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ABCMR Record of Proceedings (cont)                                         AR20140016973



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