PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:           20 June 2000           
	DOCKET NUMBER:   AR2000037378

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

	Mr. Carl W. S. Chun		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant, the executor of his brother’s estate, requests that the records of the former service member (FSM) be corrected to show that he became eligible for, and received retired pay from the Army from 12 March 1992 until the date of his death on 13 April 1999. 

3.  The applicant states, through civilian counsel, in essence, that his brother had in excess of 29 years military service, both Regular Army and inactive service with the Illinois Army National Guard (ILARNG) from June 1952 through June (sic January) 1982.  His brother told him that he had applied for retired pay from the Army, but never received the pay.  He submits confirmation from the US Army Reserve Personnel Command (AR-PERSCOM), that that command has no record of receiving a request for or authorizing retired pay for the FSM.  It may have been that the FSM applied to the ILARNG for his retired pay.  

4.  The FSM’s military records show that he was born on 12 March 1932.  He served in the Regular Army from 23 June 1952 through 20 June 1955.  His military occupational specialty (MOS) was MOS 1014 (Wheel Vehicle Mechanic). The highest rank he attained was private first class.  

5.  An extract of his DA Form 2-1, available from the ILARNG, shows that he served overseas in Japan from l7 January 1953 through 30 April 1955, when he was returned in a patient status.  There is no evidence that he served in Korea.  He was honorably separated at Walter Reed Army Medical Center, Washington, DC, on 20 June 1955 at the completion of his enlistment contract with credit for 
2 years, 11 months and 28 days active service.  His awards and decorations consisted of the National Defense Service Medal.  He was transferred to the Army Reserve for completion of his 8-year service obligation. Subsequently, he appears to have received a “0” percent, service connected disability rating from the Veterans Administration for a slight vision loss.

6.  On 28 November 1955, he joined a unit of the ILARNG as a mechanic, pay grade E-3, and reached the rank of sergeant first class (SFC), pay grade E-7, on 8 August 1961, as a repair control supervisor.  On 19 October 1967, he was appointed as a Warrant Officer One in the ILARNG as an Armament Maintenance Technician, and given Federal recognition.  

7.  On 6 March 1974, the National Guard Bureau notified the FSM that he had completed the required number of years service (20 years) and was eligible for retired pay upon reaching age 60, under the provisions of Title 10, United States Code, Chapter 67 (Section 1331).  This entitlement was not revocable, unless he attained this status based on fraud or misrepresentation.  His retired pay would be computed based upon his total period of service.  

8.  He was promoted to Chief Warrant Officer (CW2) on 13 January 1975.  
9.  On 8 March 1979, the FSM was released from his status as a CW2 in the ILARNG and was transferred to the USAR Control Group (Standby).  His Federal recognition was also terminated.  

10.  On 9 March 1979, he enlisted in the ILARNG for 4 years, in pay grade E-7.  On 20 August 1979, he was notified by the Army Reserve Personnel Center that by enlistment in the ILARNG he had terminated his officer Reserve status.  Discharge documents would not be issued.

11.  On 29 October 1979, he was notified that he had failed to complete a form which would indicate whether he desired to participate in the Reserve Component Survivor Benefit Plan (RC-SBP).  Therefore, he was informed that he would not be able to participate in the plan until he reached age 60.  

12.  The FSM was honorably discharged from the ILARNG and the Reserve of the Army, in pay grade E-7, on 13 January 1982, by reason of failure to meet retention standards.  His brother indicates that this was due to injuries the FSM received in an automobile accident.  He was credited with 29 years, 6 months and 28 days total service.  His awards and decorations included the National Defense Service Medal (two awards);  the Armed Forces Reserve Medal (two awards);  the Army Reserve Component Achievement Medal (two awards); and two State awards, the Long and Honorable Service Ribbon (five awards) and the State Active Duty Ribbon (six awards).  

13.  The limited military records available to the Board from the ILARNG contain a copy of this separation document, a DD Form 214 (Report of Separation from the Armed Forces of the United States) issued on 20 June 1955 when he was discharged from active duty, and several NGB Forms 22 (Report of Separation and Record of Service) documenting a part of his periods of duty in the ILARNG. However, his records do contain NGB Forms 23 (Army National Guard –Retirement Credits Record) which document his retirement point accumulation between June 1952 and January 1982.  In most retirement years he accrued in excess of 50 retirement points, the minimum number of points required for a successful retirement year.  A similar set of NGB Forms 23 were also submitted by his brother in the application to the Board.  

14.  The FSM reached age 60 on 12 March 1992. His brother claims that the FSM told him that he had applied for retired pay.  However, there is no evidence of record that he ever applied to the ILARNG or the Army Reserve Personnel Center for retired pay. The brother submits a copy of a National Archives and Records Administration (NARA) Form 13053, dated 17 February 1994, which acknowledges receipt of an inquiry from the FSM concerning his military service. The acknowledgement stated that the inquiry had been sent to the Army Reserve Personnel Center.  What the inquiry was about is unknown, although the brother speculates it may have been concerning his retired pay.  
15.  As indicated above, the AR-PERSCOM advised the brother in 1999 that there is no record at that command that the FSM ever requested retired pay.  Further, the Defense Finance and Accounting Service has indicated that there is no record that any retirement pay was ever given to the FSM.

16.  The FSM passed away on 13 April 1999, at age 67.  His death certificate indicates that he had no dependents.  His military records also confirm that he had no dependents at the time he completed his service with the ILARNG.  

17.  Army Regulation 135-180, at paragraph 1-4, states that retired pay is pay granted to soldiers and former Reserve component soldiers under Title 10, United States Code, Section1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual’s entire period of service, other than an inactive part of a Reserve component.  

18.  Paragraph 2-3 of that same regulation outlines the procedures for notification of soldier’s when they have completed 20 qualifying years for retired pay.  In the case of members of the Army National Guard, the Chief, National Guard Bureau is the certifying official.  Once issued, the entitlement is not revocable.  Further, paragraph 2-2a states, in pertinent part, that the individual must apply for retired pay utilizing a DA Form 108 (Application for Retired Pay Benefits).  This form should be submitted approximately 6 months before reaching their 60th birth date. 

19.  Public Law 92-425, the Survivor Benefit Plan (SBP), enacted 21 September 1972, as amended, provides that military members on active duty may elect to have their retired pay reduced to provide for an annuity after death to surviving dependents (wife or children).  Further, the spouse is required to be informed of the decision made by the service member as to whether he or she  chose to participate or not, and the level of participation.  The election made by the member is normally irrevocable, except in special circumstances.  This benefit was extended to members of the Reserve components (the RC-SBP) on 
1 October 1978 by Public Law 95-397.   

CONCLUSIONS:

1.  The evidence of record shows that the FSM was properly certified and entitled to receive retired pay from the Army on 12 March 1992, the date he reached 
60 years of age.

2.  There is no evidence of record or with the application that the FSM ever applied for or received retired pay.  It cannot be ascertained at this late date whether he actually applied for that pay.

3.  In any case, the Board concludes that it would only be fair to correct the FSM’s records to show that he did apply for retired pay to be effective on 
12 March 1992, the date he attained age 60, based upon service in excess of 
29 years and the retirement points earned during that period of service.  Any retired pay to which he was entitled should be retroactively paid to his estate.  

4.  Further, since the highest rank in which the FSM satisfactorily served while a member of the Reserve components was CW2, his retired pay should be computed at that rank’s retired pay scale, which is a more favorable pay scale than the retired  pay scale for the rank of SFC.

5.  Since the FSM had no dependents entitled to receive RC-SPB benefits, it also would be fair to waive his participation in that program, as an exception to the normal policy to withhold monies from a soldier’s pay for the SBP annuity.  

6.  In view of the foregoing, the FSM’s  records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the records of the individual concerned are corrected to show: 

	a.  that he applied for retired pay from the Army effective 12 March 1992, the date he reached age 60;

b.  that he was placed on the USAR Retired List effective 12 March 1992, with the rank of CW2, and at the W2 pay level;

c.  that his retired pay was authorized and computed based upon active duty and Reserve component service in excess of 20 years, as evidenced by the available NGB Forms 23;

	d.  that, as an exception to normal policy, that any withholding of monies from his  retired pay for the RC-SBP annuity be waived, as an exception to normal policy; and 

e.  that all back retired pay to which he was entitled between 12 March 1992 and 13 April 1999, the date of his death, be paid to the estate of the individual concerned.  

BOARD VOTE:  

__vbc___  __jea___  __ewl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037378	
SUFFIX		
RECON		
DATE BOARDED	20000620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	128.14	
2.	129.04	
3.		
4.		
5.		
6.