MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 March l999                   
	DOCKET NUMBER:   AC98-12539
				   AR1998012226

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Richard H. Allen 		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the widow of a deceased service member, hereinafter referred to as the former service member (FSM), requests the correction of her husband’s military records to show that he was placed on the retired list with the rank of sergeant major (SGM), pay grade E-9, and with back pay authorized to l August 1984.  In addition, she requests a favorable determination for award of Survivor Benefit Plan (SBP) payments.

APPLICANT STATES:  In essence, that she has proof (orders submitted with the application) that the FSM was promoted to the rank of SGM effective 1 April 1984, but his retired rank (from 21 August 1984) was only master sergeant (MSG), pay grade E-8.  She also believes that she deserves SBP payments as the widow of the FSM who served from 1942 until 1984.  She married him in 1947.  

EVIDENCE OF RECORD:  The FSM's military records show:

The FSM was born 21 August 1924.  He had active duty during World War II (WWII) from June 1944 to July 1946, when he was honorably discharged with the rank of corporal, Infantry.  He then had inactive (drill status) USAR service from December 1948 through September 1958.  The highest rank he held was staff sergeant, Infantry.  He then served in the inactive USAR from March 1960 through December 1974.  His highest rank and most important duty position was as an Infantry unit first sergeant, pay grade E-8, with a date of rank from 30 June 1965.  He was sent a letter, SUBJECT:  Notification of Eligibility for Retired Pay at age 60, dated 9 Mary 1974, by Headquarters, Fifth United States Army.  This letter notified him that he had sufficient creditable active and USAR service to be eligible to receive retired pay beginning on his 60th birthday.  

On l January 1975 he began service as an Operations Sergeant in a USAR Training Division (another inactive period of service), with the rank of master sergeant, pay grade E-8.  On 7 January 1982 he was transferred to the USAR Control Group (Reinforcement) with the same rank.  On 26 March 1984, Orders DARC-PDN B-03-008048, were issued by the US Army Reserve Components and Administration Center (RCPAC) promoting him to the rank of SGM, pay grade E-9 effective l April 1984.  That order showed that the FSM was in the USAR Control Group (Individual Mobilization Assignment (IMA)) at that time.

On 2l August 1984, the FSM was placed on the USAR Retired List, at age 60, with the rank of master sergeant, pay grade E-8.  He received retired pay in that pay grade until his death on 9 January 1998.  There is no indication in his Official Military Personnel File that he ever elected to participate in the SBP at the time of his retirement.

Army Regulation 135-180, provides the policy and procedures for determination of entitlement to retirement pay for nonregular service (to include USAR service). Paragraph 2-11c(2), currently in effect, and in effect in 1984, provides that if the soldier was transferred to the Retired Reserve on or after 25 February 1975, the retired grade will be that grade which the commissioned officer or enlisted soldier held while on active duty or in an active reserve status for at least l85 days or six calendar months.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Public law 95-397, effective 
1 October 1978, extended eligibility for coverage under the SBP to members and former members of the Reserve components who had 20 or more years of qualifying service, but had not reached age 60, the age they would be eligible for retired pay.  

The Retirement Services Office, in the Office of the Deputy Chief of Staff for Personnel, has essentially opined (COPY ATTACHED) that the FSM elected not to participate in the SBP when he retired in 1984, or during the open 1992-1993 Open Enrollment season.  Since there is no evidence of government error in this case, the applicant is not entitled to receive an SBP annuity.  

The above advisory opinion was referred to the applicant for comment or rebuttal, but she failed to respond.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a FSM’s military record,  the next of kin or other authorized applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The FSM was promoted to the rank of SGM in the USAR effective 1 April 1984.  Then he was retired from the USAR on 21 August 1984 in pay grade E-8, after serving less than l85 days or 6 months in the higher pay grade.  However, he had served from 1965 through 1984 in pay grade E-8.  

3.  Therefore, the Board concludes that, in accordance with Army regulations, the FSM was properly retired with the rank of master sergeant, pay grade E-8, and was not entitled to receive retired pay in the rank of SGM, pay grade E-9, from his date of retirement on 21 August 1984 to the date of his death.

4.  There is no evidence of record that the FSM elected to participate in the SBP at the time of his retirement, nor did he subsequently enroll in the program during at least one open enrollment season after his retirement.

5.  In the absence of any evidence of government error, there is no basis to grant the FSM’s widow a SBP annuity.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JMA__  __EWL__  __KF____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12539/AR1998012226	
SUFFIX		
RECON		
DATE BOARDED	19990318	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	129.04	
2.	137.01	
3.		
4.		
5.		
6.